Appeal from Cape Girardeau Court of Common Pleas; John A. Snyder, Judge.

"Not to be officially published."

Action by the Baker Matthews Lumber Co. against W. A. Leach, doing business under the firm name and style of the Leach Lumber & Tie Co., in which the defendant filed a counterclaim. Judgment for defendant, and plaintiff appeals. Affirmed.

C. A. Cunningham, of Blytheville, Ark., and Sam M. Phillips, of Poplar Bluff, for appellant.

Henson & Woody, of Poplar Bluff, for respondent.

Opinion of the Court, Written by

Judge Nipper

NIPPER, C.-This is an action for damages for breach of contract, wherein it is alleged that on or about the 31st day of May, 1919, plaintiff and defendant entered into a contract in writing by means of corrcspondence, whereby defendant agreed to deliver and sell to plaintiff, f. 0. b. cars at Needham, Ark., and plaintiff agreed to buy at said place, 100,000 feet of 8/4 log run soft maple lumber, to be put on sticks at Needham, and shipped when in good condition,

for the price and sum of $32 per thousand feet; that plaintiff performed all the conditions of said contract, so far as permitted, and has offered and tendered performance of the remainder; that defendant breached said contract by failing and refusing to perform the covenants and agreements contained therein, in that he failed and refused to deliver said lumber or any part thereof. Plaintiff asked judgment for $8,800. The answer of defendant was a general denial, and, in addition thereto, defendant filed a counterclaim, alleging that he had sold to plaintiff 6,284 feet of elm and maple lumber, amounting to $213.65. The jury returned a verdict against plaintiff on its cause of action, and in favor of defendant on his counterclaim for $200. Upon this verdict the court rendered judgment for defendant and against plaintiff, from which plaintiff perfects his appeal to this court.

The contract of purchase upon which this action is based, if there be a contract, is to be found in certain letters exchanged between the parties. The plaintiff maintained its office and principal place of business at Memphis, Tenn. The defendant, doing business under the firm name of Leach Lumber & Tie Co., maintained its office and principal place of business at Poplar Bluff, Mo., although he had a number of mills in Southeast Missouri and Northeast Arkansas. On May 29, 1919, defendant wrote plaintiff the following letter:

"Replying to yours of the 27th inst., relative to one to four inches thick log run maple, we quote you on this material as follows, f. o. b. Needham, Ark., rate of freight:

1 car 10/4 log run soft maple... 34.00 1 car 12/4 log run soft maple... 34.00

"The stock is to be dry, and we understand is ready for prompt shipment. We also inclose formal order covering 100 M of 8/4" log run soft maple, to be sawed and put on sticks for shipment when in good shipping condition. This stock to be f. o. b. cars, Needham, Ark., and Poplar Bluff rate of freight. We will furnish shipping instructions on this stock in the next day or two, and will thank you to advise us when you will be ready to load it. We are not in the market for any elm at the present time, but will be glad to have you notify us when the oak you have is ready for sale."

Accompanying this letter was the following order from plaintiff to defendant:

"Purchase Order.
"Baker Matthews Lumber Co.
"No. 265

"Memphis, Tenn., May 31, 1919. "To Leach Lumber & Tie Co., Poplar Bluff, Mo.: Enter our order and consign from Baker Matthews Lumber Co.

to Baker Matthews Lumber Co., at

via any route, show which on B-L. When: Promptly. Terms: Regular.

"Description: 100,000 8/4 log run soft maple @ $32.00 f. o. b. cars, Needham, Ark., and Poplar Bluff rate of freight. This is in accordance with telephone conversation with your Mr. Leach this morning. The above stock is to be put on sticks and shipped when in good condition.

"Inspection to be in accordance with the rules of the National Hardwood Lumber Association. Shipping instructions will follow. If you cannot furnish as above, advise this office before making shipment."

On May 31, 1919, defendant wrote plaintiff the following letter, which plaintiff received on June 2d:

"We are in receipt of your order for maple lumber, and you seem to misunderstand the location of this lumber. A good portion of it is scattered at different stations and lots of it would have to be loaded from 4/4′′ to 12/4′′ in the same car. We, of course, would not care to assort it out, loading each thickness separate. In fact, we couldn't do that, on account of location. If it is satisfactory to load it as above indicated, please advise us immediately."

On June 2, 1919, defendant wrote plaintiff at Memphis, Tenn., the following letter, which plaintiff claims was never received:

"As per phone conversation of today, also our letter of the 31st ult., we are unable to accept an order for maple which has to be loaded with only one thickness, and would not care to put any lumber on sticks at this time for future delivery. As per your instructions, we will then go ahead and ship out the orders for mixed thicknesses at our earliest convenience. The order for the 100,000 feet of 8/4 we cannot accept, and you may therefore consider the order canceled. We thank you for the business, and hope to hear from you often,"

On July 22, 1919, plaintiff wrote defendant the following letter:

"Our order No. 265, of May 31st, covers one hundred thousand (100,000) feet of 8/4 log run soft maple, which is to be put on sticks and shipped when shipping dry. This is to inquire what amount of this stock has been manufactured and put in pile, which information will assist our sales department very materially."

To this letter defendant replied as follows on July 23, 1919:

"Replying to yours of the 22d inst. relative to 8/4" long run maple: Beg to advise that, on account of farming in this territory, making a shortage of men and teams, we have been unable to do but very little up to this time, but expect an improvement in the near future."

On September 10, 1919, defendant wrote plaintiff in reply to a letter of September 9, 1919, with respect to some other lumber, and told plaintiff that he was not satisfied with its manner and method of doing business, and therefore canceled all unfilled orders, and advised plaintiff that no further shipments would be made on any unfilled orders. In setting out the correspondence above, we have omitted the signature, salutation, etc., in order to minimize the use of

space and to prevent unnecessarily burdening the opinion with immaterial matter. There is other correspondence which we have not set out to which, if we deem it necessary, we will refer in the course of the opinion.

The first question which presents itself for our consideration is whether or not there was ever any contract entered into between plaintiff and defendant as to the pur

chase and sale of this 100,000 feet of 8/4 log run soft maple at $32 per thousand, as designated in plaintiff's order No. 265. Plaintiff's first order for the 6/4, 8/4, 10/4 and 12/4 log run soft maple was known as order No. 264. About this there is no controversy, except as to defendant's counterclaim. Plaintiff contends that it considered the first order filled when it refused to accept further lumber, and defendant's contention is that plaintiff did not pay him for the $213 worth of lumber which he shipped on orders other than order No. 265. It is a well settled rule of law that, if a person offers by letter to bind himself by contract and states the subject matter and terms of the same, the party accepting such terms must, within a reasonable time, accept the proposition as made in its entirety, and must not qualify its terms or subject matter. The acceptance must be absolute and unqualified, without any variance or shadow of turning from the terms of the offer. Bank of Chillicothe v. Gunby (Mo. App.), 189 S. W. 412; Scott v. Davis, 141 Mo. 213, 42 S. W. 714; Railroad v. Joseph & Brothers, 169 Mo. App. 174, 152 S. W. 394; State ex rel. v. Robertson, 191 S. W. 989.

In the case last cited, our Supreme Court, in banc, lays down the following as the rule governing the making of contracts of this kind, and cites a number of authorities in support thereof:

"It is elementary that, in order to make a contract, there must be, among other things, a meeting of the minds of the contracting parties regarding the same thing, at the same time. The negotiations or preliminary steps taken by

the parties leading up to the making of a contract do not of themselves constitute the contract. The contract is

not complete or consummated until the proposition of the one is presented to the other and by him accepted as presented, without conditions or qualifications. In other words, the acceptance of the proposition presented by the one must be accepted by the other in the form tendered; and if the acceptance omits, adds to, or alters the terms of the proposition made, then neither party to the negotiations is bound. So long as any element of the proposition is left open, the contract is not complete, and, of course, not binding on any one."

The evidence above set out discloses that on May 29th defendant wrote plaintiff and quoted certain prices for 4/4, 5/4, 6/4, 8/4, 10/4, and 12/4 log run maple. On May 31st plaintiff placed its order No. 264 for one car of 6/4, one car of 10/4, one car of 12/4, and 30 M 8/4 log run soft maple. On the same day it mailed to defendant its order No. 265, above referred to, and which is the subject matter of this controversy. On the same day defendant wrote plaintiff, advising it that defendant's letter of May 29th had been misunderstood; that he could not ship these dimensions in carload lots, but would have to load them in the same car.

There is no contention made here by plaintiff that defendant ever shipped any part of the lumber included in order No. 265, and there is nothing in this record to indicate that there was an acceptance of this order by defendant, unless it be the letter of defendant to plaintiff, dated July 23d, wherein defendant advised plaintiff that he had been

unable to do very much on account of certain conditions existing in that territory, but expected an improve

ment in the near future. The broadest construction to be given this letter would be that defendant intended to accept plaintiff's order, but there is nothing to indicate that it was so accepted. No part of the lumber was ever shipped, nor was plaintiff advised by any of the correspondence that defendant accepted its order No. 265 for the 100,000 feet of 8/4 soft maple.

Under all of the authorities above cited, the evidence in this case is insufficient to establish a contract. Plaintiff has no right to maintain this action, and the court should have given a peremptory instruction to find for defendant on plaintiff's cause of action. In this view of the case, it becomes unnecessary to discuss the point, made by plaintiff, that the evidence is insufficient to show a cancellation, because, if there was no contract entered into, there was none to cancel.

We are not unmindful of the rule, although not invoked here, that the construction placed upon a contract by the parties thereto is evidence of what both intended the contract to mcan; but this does not apply where there was no contract in the first instance. The objection is also made that there was not sufficient evidence upon which to base defendant's counterclaim. However, an examination of the record reveals that plaintiff at no time asked any directed finding for it on defendant's counterclaim, but requested and was given an instruction submitting that issue to the jury, and cannot complain now.

Therefore, the commissioner recommends that the judgment be affirmed.

The plaintiff, the Bay State Milling Co., obtained through a salesman an order for 500 barrels of flour at $12.10 per barrel, to be shipped to the defendant, the Saginaw Baking Co. The order, which was signed "E. Jakubowsky, Buyer," was made subject to confirmation by the plaintiff. The plaintiff refused to confirm at $12.10 and wanted $12.20 per barrel. Following a visit to the defendant's bakery the plaintiff's salesman changed the figures to $12.20 and sent the corrected order to the plaintiff. The latter then notified the defendant of confirmation of the order at $12.20 per barrel. About a month later Jakubowsky canceled the order by letter, explaining that he had not acted earlier because of his failure to notice that the confirmation was at $12.20 per barrel.

The flour was shipped to the defendant, but was not accepted by it. The plaintiff then sold the flour in the market at $9.25. Thereafter, the plaintiff sued the defendant to recover the difference between the sale price of the flour and the price at which it was finally sold.

It was held that parol evidence could be admitted to show that Jakubowsky authorized the change in price after the order was signed without offending against the statute of frauds. It was also held that evidence was inadmissible to show limited authority in the defendant's manager, Jakubowsky, to make purchases. The court held that,

in the absence of notice to the contrary, the plaintiff's salesman had a right to assume that the defendant's manager and buyer was authorized to purchase a commodity so necessary for its business as flour in the quantity ordered from the plaintiff, which was sufficient to satisfy the needs of the defendant's business for 50 to 100 days.

The fact that the order was signed by "E. Jakubowsky, Buyer," was held not to show a failure to comply with the statute of frauds requiring an order to be "signed by the party to be charged, or his agent in that behalf." The court so held, because the order showed on its face that the Saginaw Baking Co. was the purchaser of the flour, and that Jakubowsky, as its agent, signed in its behalf.

The contract of sale provided that upon the failure of the defendant to accept any shipment under the order the seller might cancel the contract and also indicated the measure of damages to be recovered from the buyer in case of such cancellation. The contract also authorized the seller to pursue such further remedies as the law might provide. It was held that under these provisions the plaintiff was not obliged to accept the defendant's attempted cancellation of the contract.

A judgment for the plaintiff for the sum of $1,396.65 was affirmed.

Action by the Bay State Milling Co. against the Saginaw Baking Co.