P. A. Smith Co. v. Muller

WASTE, C. J.

Plaintiff brought an action against the defendant for the purchase price of plate glass alleged to haye been sold to defendant but which defendant refused to accept. The trial court found that certain writings signed by the parties, and on which the plaintiff relied, were not intended to be contracts, but were signed, and duplicates thereof exchanged, pursuant to an oral understanding and agreement that the writings should not, and did not, constitute a contract between the parties, and that they were not delivered as a contract. Judgment was therefore entered for the defendant, and plaintiff has appealed.

The plaintiff corporation is engaged in the selling and furnishing of glass and plate glass. The defendant is engaged in the building .business. Plaintiff’s causes of action were based upon writings, similar in form, one of which reads as follows:

“P. A. SMITH CO.,

“Glass

“Oakland, Cal., April 27, 1923

“No.'97

“Mr. P. A. Muller

“We will perform the labor and furnish the GLASS necessary to glaze the building at W.-sie 23rd Ave. bet. E.

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14th & B. 12th St., Owner Mr. McElhinney, Architect, East Bay Planners, in accordance with plans & Specif- we will furnish and set plate for the sum of 65 off list; net cash. Disclaiming all liability for delay occasioned by strikes, labor troubles or other causes beyond our control. This bid does not include the cleaning of glass or replacing glass broken by others.

“EXCEPTIONS: If any cement P. A. SMITH CO. corners they will be extra at Per S. H. Sorrell 1.00 per lin. ft.

“ACCEPTED:

“F. A. Muller.

“This quotation subject to - days acceptance from date. ’ ’

The defendant denied that any contract for the purchase of glass was, in fact, entered into. He further pleaded, as a special defense, and the court found, that in the spring of 1923 it was common knowledge among those engaged in the building business, and was represented by the plaintiff to the defendant, that there was a shortage of plate glass available for building purposes, and that on account of the shortage plaintiff would not be able to get a sufficient supply of glass to do an active business in Alameda County unless it were able to show a considerable number of accepted orders. Plaintiff orally proposed to defendant that, whenever defendant had the prospect of securing a building contract, plaintiff would make out a bid for the furnishing of the plate glass therefor at current list prices less a discount of sixty-five per cent; that, in order to enable plaintiff to secure glass from the manufacturers, the defendant should thereupon sign an acceptance of the bid; that the writing should not in fact constitute an accepted bid, but, in case the defendant became the builder on the job referred to in the bid, and had the letting of the subcontract for glass or plate glass, plaintiff' would make a competitive bid therefor, the defendant to award the subcontract to the lowest bidder. Pursuant to such oral understanding between the parties a number of purported bids were offered by plaintiff, and signed as accepted by the defendant; but the buildings with reference