Wheeling Steel & Iron Co. v. Evans

McSherry, C. J., delivered the opinion of the Court. This is an action of trespass on the case, instituted by the Wheeling Steel and Iron Company against William H. Evans for a breach by the latter of his alleged warranty of the authority of William J. Driscoll to contract on behalf of the Evans Marble Company for the purchase of one hundred tons of tack plate for the manufacture of tacks. The Evans Marble Company is a corporation of which Evans was president. He was also the owner of nine hundred and ninety-five of the one thousand shares of its capital stock.

It is averred in the declaration that Driscoll had made such a contract with the Steel and Iron Company in the name and for the use and behoof of the Marble Company, but that he had no authority to do so and that the Marble Company when sued for a breach of the contract repudiated the contract upon the ground, first, that it had not made the purchase, and, secondly, that the buying and selling of manufactured iron was not within its corporate powers. It is not claimed that Evans is liable for the price of the iron as purchaser of it, but it is insisted that he is answerable for the damages sustained by the Steel and Iron Company by reason of the failure of the Marble Company to take the iron; and that he is so answerable because he warranted that Driscoll had authority to contract for the Marble Company, when in point of fact he had no such authority. It is obvious at the threshold of the case that if no contract was in reality made by Driscoll for the Marble Company with the Steel and Iron Company, there could not be by any possibility a breach of either an express or an implied warranty of ³¹⁰ Driscoll’s authority to make that contract; and consequently the first inquiry that suggests itself is this: Was there any legally sufficient evidence adduced to establish such a contract? The Superior Court of Baltimore City ruled that there was no such evidence before the jury, and thereupon peremptorily instructed them to find a verdict for the defendant.

From the judgment entered upon that verdict the pending appeal was taken by the Steel and Iron Company. It appears without contradiction that a copartnership consisting of E. E. Williams and W. J. Driscoll conducted in Baltimore the business of manufacturing tacks, and that they traded under the name of the Southern Tack Company. .The concern became indebted to Evans and finally made an assignment, and ultimately the Evans Marble Company continued the business in its own name, with Driscoll as foreman at a salary of ten dollars per week. Several orders were given by the Marble Company to the Steel and Iron Company for tack plates and the'prices charged were paid. On September the thirteenth, 1899, the following letter was sent to the Steel and Iron Company: Baltimore, Knoxville, Chicago.

Evans Marble Company, Baltimore 9-I3-’99- Wheeling Steel & Iron Co., Wheeling, W. Va. Gentlemen : Please quote us your best price on 100 tons of tack plate from 12 to 17 gauge, regular width, and greatly oblige, Yours truly, Evans Marble Company, Baltimore, Md., Driscoll. On the fifteenth this reply was mailed : Copy. Wheeling, W. Va., Sept. 15th, 1888.

Evans Marble Co., Baltimore, Md. Gentlemen: Answering your favor of the 13th, we have very little room for more business for prompt shipment. We quote you for 100 tons tack plate rolled in grooves 15 wide cut about 3 feet lengths for shipment say about 25 tons per month Nos. 12 and 14 $2.72. f. o. b. Wheeling. ³¹¹ No. 15 and 16 $2.80. Net cash in 30 days from date of shipment.

We have discontinued the making of No. 17 gauge. We make this quotation subject to wire reply not later than Monday, the 18th inst. Very truly yours, (Signed.) Wheeling Steel and Iron Co. Dictated by H. G. Tinker. On the twentieth the Marble Company telegraphed : 5 G T C W 21 Paid 5P Baltimore, Md., Sept. 20, 1899.

Wheeling Steel and Iron Co. Enter our order for 100 tons tack plate if at prices quoted on 15 specifications to follow The Evans Marble Co. And on the twenty-second this answer was forwarded: Copy. Wheeling, W. Va., Sept. 22d, 1899. Evans Marble Co., Baltimore, Md. Gentlemen : We have your telegram of the 20th inst., and have entered your order for 100 tons of tack plate at prices quoted by us on the 15th inst. Very truly yours, (Signed) Wheeling Steel and Iron Co. These papers constitute the contract, if there be a contract at all, for we do not consider that the verbal interview between the general sales agent of the Steel and Iron Company and Driscoll in Baltimore on March the twenty-first, 1900, supplements or makes more definite the written evidence.

This, however, will be alluded to a little later on. It will be noticed that the telegram of September the twentieth, purporting to have been sent by the Marble Company, is not an acceptance of any antecedent definite offer. The letter of September the fifteenth quoted the prices of four grades of tack iron, viz.: Nos. 12 and 14 at $2.72 per one hundred pounds, and Nos. 15 and 16 at $2.80 per one hundred pounds ; whilst the telegram of the twentieth simply directed the Steel and Iron Company to enter the Marble Company’s order for one hundred tons of tack plate, “specifications to follow.” No specifications, that is to say, no designation of the number of tons of any of the four grades, was ever furnished. The purchaser, as the Steel and Iron Com ³¹² pany proved, had the right under the contract to elect which sizes it would specify, and whether all the material which was sold was to be paid for at $2.72 or some of it at-$2.8o ; and the vendor was unable to tell for want of specifications the exact contract though it regarded the contract as closed for the sale of one hundred tons of tack plate, the purchaser having the option to specify for any or all of the four gauges.

This testimony adduced by the vendor correctly interprets the written evidence. If the purchaser had the option to specify for any orall of the four gauges, it is clear that until such specifications had been made there could be no definite agreement; because it was the purchaser’s privilege and right to designate one hundred tons of No. 12, or of No. 14, or of No. 15, or of No. 16; or twenty-five tons of each gauge, or any other of a vast multitude of different proportions of the whole four gauges, or of any two or three of them. The price of each guage was definite ; the total quantity of tons was definite, and the times of delivery were definite ; but the proportion of each gauge, as well as which of the four would be required, is wholly indefinite and uncertain. As to that element of the alleged contract there was obviously no consensus ad idem.

The telegram of September the twentieth was not a direct and unequivocal acceptance of any definite and unequivocal proposal which by acceptance could become a complete contract. So far as the price and the gross number of tons were concerned the telegram may be treated as an acceptance of an antecedent offer, but the superaddition of the words “specifications to follow” left something essential for future action by the purchaser, and therefore constituted, in legal effect, a new and independent offer requiring an acceptance by the vendor. The test of this lies in considering what would have been the measure of damages in a suit instituted by the vendor against the vendee for a breach of the alleged contract. Would the vendor have been entitled to recover -the difference between the contract price and the market price of the whole one hundred tons, reckoned on the basis of $2.80 per hundred pounds ; or on the basis of $2.72 per hundred pounds; or on some other ³¹³ basis founded on an arbitrary apportionment of the whole number of tons amongst the four different gauges ?

And would not the difficulty of fixing a correct measure of damages have sensibly increased if the market price of the four gauges had fallen in an unequal ratio and in different rates of percentage ? What quantity of each gauge could a Court or jury declare that the vendee ought to have specified ? If either Court or jury had undertaken such a task it would have supplied a