Falihee v. John Simmons Co.

The defendant appeals .from a judgment entered on a verdict. The action is for damages for defendant’s refusal to fulfill a contract for the sale and delivery of merchandise. The defense is that no valid contract was entered into, because the alleged contract was for the sale of goods for the price of more than fifty dollars and no note or memorandum thereof was ever, as it is said, made in writing and subscribed by the said defendant or its lawful agent.

. The plaintiff contemplated bidding on a contract to do the plmnbing work on certain houses' in the course of construction, and sent out letters -to a number of firms dealing in plumbers’ supplies asking for .estimates. The defendant submitted an estimate giving a detailed list of the materials to be supplied and fixing the price at $7,736. This estimate was not signed. After ’ receiving this estimate plaintiff sent for one Surre, a salesman in defendant’s employ, and stated that he would accept the proposal if the estimated price could be reduced to $7,500. Surre replied that lie had no authority to make or change prices, as was the fact, but he called up on the telephone one Walton, the defendant’s manager, -who, as is conceded, had authority to bind defendant. Surre informed Walton that plaintiff wished the price reduced to $7,500, to which Walton replied, “ all right.”' Plaintiff and Walton then had a conversation over the telephone, and Walton said, *we will accept your contract for $7,500; how soon will they have to be delivered % ” Thereupon Surre, at plaintiff’s request, struck out of the proposal the original price of $7,736 and wrote in place thereof the words and figures $7,500, and wrote at the bottom of the estimate the words: “ The amt. agreed $7,500 by H. W. Walton, Del. to be made 15 June, .1905.” It is. upon this act of Surre’s that the claim is made that a note of memorandum of the contract was made in writing and signed by defendant’s agent. It is conceded, as it must be, that, until Sume wrote the above words at the foot of the estimate, the paper was merely a tentative proposal, not binding upon defendant. It is also clear, and is not disputed, that Surre had no general authority to make a contract in behalf of defendant, although. .Walton had. The question, therefore, is whether or not Surre undertook to make a binding contract, and, if so, whether he' was specially authorized by Walton to. do so. We ¿onsider that as a *841matter of law the question should have been answered in defendant’s favor. All that Walton did was to consent to a change in the price stated in the estimate. Nothing was said over the telephone respecting the signing of the estimate, or respecting anything else except changing the proposed price. The agreement by Walton to accept a contract at $7,500 was made in a conversation with plain-, tiff, and not with Surre, and, therefore, cannot be construed as conferring any authority on Surre. Furthermore, the memorandum made by Surre does not purport to be an execution of the contract or the signing of a* proposal therefor on behalf of defendant. It appears on its face to be merely a memorandum that Walton had agreed to a reduction of the price to $7,500. Since there was no other basis than this for plaintiff’s claim that a valid contract had been made, the complaint should have been dismissed.

The judgment and order must be reversed and a new trial granted, with costs to appellant to abide the event.

Ingeaham, McLaughlin and Houghton, JJ., concurred; Pattebson, P. J., dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.