Van Camp Packing Co. v. Smith

Page, J., delivered the opinion of the Court. This suit was brought to recover damages for a breach of contract. It is alleged, that the appellees agreed to sell and deliver to the appellants, five thousand cases of canned tomatoes, but neglected or refused to deliver the same. . ⁵⁷¹ The Court by its instruction took the case from the jury and directed a verdict for the appellees. The alleged sale was negotiated by Johnson & North, of New York City, on account of the appellees to William Nicholls & Co., of Chicago.

The contract or “sales ticket,” sent to Nicholls & Co. was as follows: Bel Air, Md., Sept. 20, 1901. Sold to Messrs. William H. Nicholls & Co., Chicago, 111., for account of Smith, Rouse and Webster, Bel Air, Md., five thousand (5,000) cases No. 3 standard tomatoes at 8/^4 cents per dozen f. o. b. county, for buyers labels $.90 per thousand for same. Terms net cash.

To be of 1901 packing and shipment during the present season. Smith, Rouse & Webster.” Acccepted No. 874 Smith, Rouse & Webster” This was executed in duplicate; and on one of the copies a line had been drawn through the words “Nicholls Co.” and above them was written “Van Camp Packing. Indianapolis.” On the 23rd of September Nicholls & Co. informed the appellees, by letter of that date, that the goods had been purchased on account of one Schubrick; and later on, by letter of 28th of September wrote the appellees that they had had trouble with Schubrick and that, “while the matter is still unsettled we write you as early as possible to see if arrangements can be made, either to cancel the purchases which we feel there will be no trouble, or should you want to take them on your own account, on the original purchase at 87 J^c. net cost.” On the first day of October (presumably in reply to this letter), the appellees telegraphed to Nicholls & Co.; “Schubrick may cancel, but must act today.” On the same day Nicholls wired to the appellees, “all tomatoes for account of Schubrick we have turned over to Van Camp Packing'Company.” The effect of this correspondence amounted to an offer to cancel the Schubrick matter, and to turn the goods over to the Van Camp Company. The appellees accepted the offer by their telegram of the 1st of October, subject however to the condition that “we (they) have an immediate wire routing, otherwise must cancel.” The offer thus made was an ⁵⁷² entirely new one, having no necessary connection with the Schubrick transaction, and open for the acceptance of the appellees with or without conditions.

The actual acceptance of the appellees was upon the condition that the appellees should have immediate wire routing. We think this, when agreed to-by Van Camp, established a new contract, whereby the Van Camp Packing Company was to secure the tomatoes, provided the condition of “immediate wire routing” was complied with. The Court below also held, that there was no evidence from which the jury could find that the condition had been performed. The proof shows that the telegram of the appellees accepting the offer to turn the tomatoes over to Van Camp, subject to the condition, was sent on the evening of the first of October, as a night message; it reached Chicago at 8.06 P. M. of the same day and was delivered early on the morning of