Stehli Silks Corp. v. Pettibone-Peabody Co.

197 N.W. 183, 182 Wis. 624

• Court: Wisconsin Supreme Court
• Decided: February 12, 1924
• Status: Published

Opinion

Eschweilek, J.

We are satisfied from the orders, correspondence, and actions of the parties to this record that there was a binding contract between the two, a breach thereof by the defendant, and a consequent liability for damages to plaintiff. Though express instructions were given by Mr. Steele to defendant’s buyer, Miss Lohn, that no contract should be made with plaintiff except with provision for protection in case of falling prices, and even though there was testimony from which the court found that such a promise was made on April 14th by Mr. Johnstone, plaintiff’s representative, nevertheless the two sets of orders made out on April 14th and the acceptance by plaintiff of April 20th omitted any such provision and such omission was known to Mr. Steele from the start.

The first order on defendant’s own blank on April 14th and approved by Mr. Steele by signing his initials, the second order on plaintiff’s blank made out the same day, and the acceptance of April 20th, each disclosed on its face that there was no such provision. The second order and the acceptance each contained in heavy tjrpe in the heading a provision that prices were subject to change in case of costs being affected by new revenue or. tax laws, so that the very subject of possible change in price was expressly provided for, thereby impliedly excluding the idea of any contract to so change for other grounds.

The letter of May 7th by Mr. Steele, quoted above, calling their order “ironclad” and expressing a belief that if conditions warranted it the plaintiff would take care of defendant in the matter of lowering of price, can and should have no other interpretation than that it was a recognition that there was then a binding contract between the parties with no provision for such a price revision. Were there any possible doubt in the situation, it is cleared up by the subsequent and repeated statement by plaintiff as shown in the correspondence quoted above, plainly asserting that no such condition existed.

The letter óf May 7th must be deemed to be a definite and absolute acknowledgment of the contract set out in the acceptance of April 20th.

That there were printed clauses in the second order and the acceptance not found in the first order on plaintiff’s form is entirely immaterial; such possible changes were expressly provided for in the clause stamped on the first order that such order was “taken subject to printed conditions on seller’s order form.” They are also immaterial because in effect waived by defendant’s actions and because in no wise attempted to be relied upon or asserted by plaintiff.

Plaintiff, therefore, not defendant, is entitled to judgment and for the damages as claimed and shown. Hess Bros. v. Great Northern P. Co. 175 Wis. 465, 470, 185 N. W. 542.

By the Court. — Judgment reversed, and cause remanded with directions to enter judgment for plaintiff for its damages as shown.