Buffalo Pressed Steel Co. v. Kirwan

⁶¹ Offutt, J., delivered the opinion, of the court. The Buffalo Pressed Steel Company is a corporation engaged in the manufacture and sale of steel products at Buffalo, Lew York. Shortly after its organization in April, 1916, it had on hand an accumulation of steel stock in small plates or pieces which it wanted to dispose of, and on June 5, 1916, it wrote Edgar L. Kirwan of Baltimore, offering to sell him a, carload of this stock at $80 a ton. Kirwan, who appears to have dealt in steel products as a jobber and also as a factor and broker, in reply offered to pa,y $70' a ton for the steel.

As a result of further correspondence the steel company sold a small quantity of steel pieces at $80 per ton, which at Kirwan’s direction was shipped to a firm in Worcester, Massachusetts, and on June 29, 1916, the company offered to sell Kirwan a carload of these steel pieces at $70 per ton, “net Buffalo'.” Eothing came of this offer, but on July 7, 1916, Kirwan wrote the steel company a letter in which he said: “This will confirm telegram advising that we have not been able to interest anyone in the steel today. “We think possibly the best method of handling this particular car would be either to ship to Worcester or Boston, and we will then job it out to the best advantage, and it will undoubtedly yield better results this way than in attempting to close it out as a car. “As we have written you several times, there is comparatively few users of the material that are willing to accept the small pieces, and our experience has been that we have had to educate our customers into using this material, after which there will he no difficulty in keeping you cleaned up. “If you care to let the oar come forward to be setltled for as sold on basis of $70.00 per ton, less 5% commission to us, we to stand all freights and storage charges, you may ship to us in care of Genery Stevens & Sons, Worcester, Mass., or Eorest Hill Storage Warehouse Co., Boston, Mass.” ⁶² Which, the steel company on July 10th answered by letter-reading as follows: “We have for acknowledgment your favor of the 7th inst. and wish to advise yon that shipment is being made today of the carload of 20 square 22 Ga. steel, to you c/o Genery Stevens & Sons, Worcester, Mass. “We prefer to do this rather than to unload the steel, and we cannot allow it to stand in the car any longer. “We trust that yon will use your best efforts to see that the entire carload is moved promptly, and remittances made to us. “We do not want this carload of steel being delivered to yon at a price of $70.00 net ton, less 5%, to establish a price precedent. “We are perfectly willing, however, that yon make a 5 J0 commission for all of this steel that you sell for ns. “Under normal conditions, however, we have no trouble in effecting sale of this stock at $80.00 net ton, and this stock is sold to yon at $70.00 net, less 5%, only because of other avenues for its disposal being temporarily clogged up.” And on July 13, 1916, Kirwan replying to- this letter wrote: “Tour favor of the ,10th at hand. Kindly note that our proposition is not a straight-out purchase, but the material will he settled for as sold by us, and the car to remain subject to your orders in case we do not move it as fast as you may desire. “We, of course, will go to work on it at once and try to have it cleaned up within a few days, but will not accept it as a straight-out purchase to be handled as per our letter July 7.” As a result of this correspondence a carload of steel pieces was shipped on or about July 14, 1916, by the steel company to Kirwan, o/o Genery Stevens & Sons, Worcester, Massachusetts. On July 28th, Kirwan telegraphed the steel com ⁶³ pany that he was at “work on the ear,” and on the same day that company wrote Kirwan requesting “telegraphic advice relative to disposition of material shipped to Worcester, Massachusetts,” and on July 29th, Kirwan replied by letter that he was “still at work on the oar” and added this statement: “If you will refer to our letter of the 13th you will see that we distinctly state that we would not be responsible for the car only to extent of disposing of same and remitting for account when sold. With this explanation before you, if you are not willing to leave the car in our hands, it is perfectly satisfactory for us to have you take charge of same, but if you will leave it with us we will do all that we can to remove same in the very near future.” The car appears to have remained at Worcester until October 11th, 1916, when Kirwan, upon the request of the steel company ordered it returned to Buffalo where it was finally received.

Upon its return to Buffalo the steel company was required to and did pay the freight and demur-rage charges which had accrued on the shipment. These charges included a charge for freight from Worcester to Baltimore and from Baltimore to Buffalo, although it does not appear why the car was sent to Buffalo by Way of Baltimore instead of directly as ordered by Kirwan, nor does it appear what part of the storage and freight charges paid by the steel company were due to this detour. After paying these charges, the steel company demanded that Kirw’an reimburse it for such payment and, upon his refusal, it brought an action against him in the Superior Court of Baltimore City for the recovery of the amount so paid by it for freight and demurrage. The case was tried before a jury which, at the conclusion of the plaintiff’s testimony, under the direction of the court, returned a verdict for the defendant, and from the judgment on that- verdict this appeal was taken. ⁶⁴ The appeal presents but a single ^ question, and that is whether the correspondence to which we have referred formed a contract under which the defendant was bound to pay all the freight and storage charges which accrued on the carload of steel shipped by the plaintiff to him at Worcester, Massachusetts, from the time it was shipped from Buffalo until it returned there, whether he sold the steel or not, and in that inquiry the first point to he considered is whether there was any contract at all between the parties.

Before analyzing the correspondence relating to this question we will refer briefly to. the rules by which it is controlled. A contract has been defined as an “agreement which creates an obligation,” 13 O. J. 237, and such an agreement may he defined as the concurrence of two or more persons in a common intent to affect their legal relations, and for the purposes of this case these definitions may he taken as sufficiently accurate. The agreement referred to must test finally upon an offer made by one party and the acceptance thereof by the other party to that contract. Brantly, Contracts, par., 7.

An “offer is a, proposal to. enter into a contract” (13 G. J. 266, also Bouvier), and an acceptance is the assent of the party to whom the offer is addressed to its terms. The offer1 must he certain and definite and the acceptance must “in every respect meet and correspond with the offer1.” 13 C. J. 278; Brantly, Contracts, par. 9. That is to say both parties to the contract “must actually give their assent to that proposal and acceptance, he it what it may, which de facto arise out of the terms of their communications.” 1 Elliott, Contracts, par. 26. The offer in this case is contained in Kirwan’s letter of July 7th and is made in the following language: “If you care to let the car pome forward to. be settled for as sold on basis of $70 per ton, less 5% commission to us., we to' stand all freights and storage charges, you may ship to us,” etc. In our opinion this was a definite offer on Kirwan’s part to. sell this steel for the company as its factor or consignee upon certain and definite terms.

The only part of the offer about ⁶⁵ which there could he any doubt is tbe phrase1 “we to stand all freights and storage charges,” and that, when taken in connection with the surrounding circumstances, is definite enough. This offer was accepted by tbe appellant in its letter of July 10th. It is true, in that letter the steel company refers to the carload of steel as having been sold to the appellee, but elsewhere in the letter it clearly recognized the fact that the steel was not sold to the appellee but shipped to him as a factor1 or broker, and the letter amounted in our1 opinion to an acceptance of the company’s offer, and it was so treated by both the appellee and the appellant in theiir subsequent conduct and correspondence. Assuming then the existence of a contract under which the steel company shipped