Marx & Rawolle v. Standard Soap Co.

RICHARDS, J.

This is an appeal from a judgment in favor of the defendant in an action instituted by the plaintiff to recover damages from the defendant for the alleged repudiation of a contract for the sale by the defendant to the plaintiff of twelve carloads of crude glycerine. The

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contract upon which plaintiff relies for a recovery was claimed by it to have been created through an interchange of telegrams and letters passing between the defendant and certain middlemen acting as brokers for the purpose of purchasing the product in question for the use and benefit of the plaintiff. These middlemen were the Zimmerman, Alder-son, Carr Commission Company, having offices in Chicago and New York, the plaintiff being a business concern located in the latter city. The defense relied upon by the respondent on the trial and upon this appeal is that the letters and telegrams referred to did not amount to a completed written agreement for the sale of said product, and that the defendant withdrew from the negotiation before the parties had arrived at and consummated a final and binding contract in the premises. The trial court, upon the conclusion of all of the evidence presented on both sides of the case, granted the defendant’s motion for a nonsuit, which had the effect of withdrawing the ease from the jury, and which was followed by the judgment in the defendant’s favor from which this appeal has been taken.

The evidence is in the main undisputed. The negotiations out of which the action arose were initiated by a letter sent on September 2, 1915, from the Chicago office of the above-named brokers to the defendant at its place of business in Berkeley, California, explaining the state of the glycerine market, and suggesting that the firm of brokers could sell some of the defendant’s glycerine product at an indicated price. The defendant responded on September 17, 1915, with a telegram to the brokers to the effect that it would sell about twelve cars of crude glycerine for a price slightly above that indicated in the brokers’ letter. Upon receipt of this message the brokers’ Chicago office communicated its import by telegram to their New York office, which submitted the substance of the defendant’s message to the plaintiff, who on the same day authorized the latter to instruct the Chicago office that the plaintiff would take -twelve cars of glycerine at the indicated price shipside San Francisco. Certain details as to the disposition of the drums which were to contain the glycerine during shipment were included in this message, and upon its receipt the Chicago office at once sent to the defendant a telegram embodying the terms, to which the defendant responded on September 18th, by telegram in the following words: