Philip Wolf Co. v. King Starrett

CHIPMAN, P. J.

Action to recover damages for the breach of an alleged contract for the sale of hops by defendants to plaintiffs. The court found that no contract was entered into between the parties, as alleged in the complaint,

[750]

or at all, and defendants had judgment. Plaintiffs appeal from the judgment and from the order denying their motion for a new trial.

The judgment of this court entered on September 30, 1905, was vacated and set aside for the reasons that, upon suggestion of diminution of the record made before submission of the cause, but not called to the attention of the court when the opinion was being written, the notice of intention to move-for a new trial was shown to have been duly served, the motion for a new trial duly heard and denied by the court, and that the appeal was taken within sixty days after judgment was rendered. It therefore becomes unnecessary to consider the points made by respondent based upon the nonappearance of the foregoing facts.

The sole question in the case is, as suggested by appellants, in their reply brief (now before this court, but which was not in the record when cause was submitted on the August calendar of this court, although claimed by appellants to have' been filed with the supreme court on April 4, 1905) : Did the correspondence between the parties constitute a contract?

On May 22, 1903, plaintiffs wrote defendants (who are hop-growers) offering fifteen cents per pound for twenty thousand pounds of hops in advance of the harvest. On May 28th defendants replied, saying among other things not material: “We have concluded to accept your offer, provided you will put up one thousand dolíais cash inside of thirty days, without interest, and the balance when the hops are in bale. ’ ’ On May 29th plaintiffs replied: “We have your favor of yesterday and now note that you accept our offer of 15c for-20,000 pounds of your coming crop, and for which inclose contracts which sign and return one of them to us. This is' the same form of agreement signed by the various Santa Rosa growers when

[whom

is doubtless meant] we have contracted with. As to the freight, will arrange the same as we did with our last purchase. The $1,000 is ready whenever and how you may want it, and free from interest.” On June 2d one of the defendants replied: “The contract does not suit Mr. Starrett [the other defendant]. He will be down in a week or ten days and arrange matters with you.” Mr. Starrext called at plaintiffs’ office on July 2d and talked the mat