Gaveney and another vs. Gates. at 80 cents or 85 cents, and freight from there, is only $15 per car, while on yours it is $24 per car. We will try to have the other yard take a part of them, but if it does it would want them on as favorable terms as shingles can be purchased elsewhere." (7) From defendant to plaintiffs, October 1st: "Yours of October 1st is received. I don't want you to pay any more than you can afford to, if it ain't but twenty cents per thousand I shall not blame you. They are not such shingles, however, as Wakefield & Trow sell at 90 cents. Such shingles as he sells at that we offer at 75 cents. But do the best you can, and I will not ship you any more until you order." (8) From plaintiffs to defendant, October 7th: After unimportant preliminaries, and stating that Trow's shingles are as good as his, and the freight less, they say: "We are willing to do what we can to help you out on these shingles, but it looks as though it will take at least two years to dispose of them here. After realizing our freights, we will credit you with sales, as we have not money enough in our business so that we can af ford to lock up so much. We will ship you fifty barrels of flour as soon as we can get wheat enough to make them, but very little is coming to market now." (9) From defendant to plaintiffs, October 10th: "Please ship us 50 barrels of flour as soon as you can; and about the shingles, do the best you can out of them and that is all I want. I will not ask you for any money out of them, and don't want you to pay any more than you can buy the same kind at, and want you to have all the time you want to pay for them." (10) From same to the same, October 12th: After informing the plaintiffs that one Lockway had repeatedly written and telegraphed to him that he would send him the money for the shingles the plaintiff's had in their hands, he says: "I would rather you would take care of the shingles. If there is so much money there, and he has plenty of it, let it to you, as that would pay both of us and suit me him pay Gaveney and another vs. Gates. better; and what I want you to do is to sell the shingles if you can, and let me lose what there is to be lost, as you are not in any way to blame for the shipment. I do not know Mr. Lockway, and I would not think of taking the shingles out of your hands unless you wanted me to and he paid for the same. Any disposition you make of the shingles will be satisfactory." (11) From plaintiffs to defendant, October 15th: After saying that they had tried to sell the third car-load of shingles to one Hotchkiss, who kept another lumber yard, and had offered a car-load to Lockway for one dollar per thousand and freight, they say further: "We will let him have, say, 100,000 or more of your shingles at, say, $1 per thousand and freight, and pay you all he pays, the freight to apply on the other shingles. Name the price and freight, and we will deliver the shingles to him on payment of the money, and remit the same to you. If he is going into the shingle trade, which I think is doubtful, we would rather he had them of you than anywhere else." These are all the letters or postal cards which throw any light upon the contract. The proposition of the defendant. is contained in the first letter. He wished to send the plaintiffs a car-load of shingles, and take in exchange for it flour or feed, etc., at any time that fall or winter. The second letter is an acceptance of the proposition: "Send the car of shingles, and we will sell them," etc. This made the first contract between the parties. A car-load of shingles was to be sent to the plaintiffs to sell for the defendant, and the proceeds to be applied upon flour and feed which the defendant was to have that fall or winter from the plaintiffs. The third letter shows only a compliance on the part of the defendant of this contract: "I have sent you one car No. 1 shingles. Do the best you can. That will satisfy me. If you can't afford to pay a dollar besides the freight, less will do." The first car-load is thus disposed of. As to that there can be no doubt that the plaintiffs were to sell the Gaveney and another vs. Gates. shingles for what they could reasonably obtain. This letter contains another proposition: "I am going to send you another car soon." The fourth letter is a notification by the defendant to the plaintiffs that he had sent to them two more car-loads of No. 1 shingles. "I send you two cars No. 1 shingles. 229,000, which I hope to get a dollar a thousand, net; but do the best you can and I will be satisfied." The fifth letter is a repetition of the others, and a summing up of the shingles sent. "I have already sent you three carloads of No. 1 shingles, and perhaps this will be too many, but do the best you can. I thought, at a dollar besides the freight, those No. 1 shingles would sell like hot cakes." This is another proposition, fulfilled on the part of the defendant before its acceptance by the plaintiffs. But what is this proposition? It is most clearly that the two other car-loads were sent by the defendant to the plaintiffs, to be sold by them for what they could reasonably obtain, and that the proceeds should be applied on the feed or flour that the defendant was to have from the plaintiffs that fall or winter, the same as the first. No other terms or conditions are expressed or contemplated. In the sixth letter the plaintiffs complain that the defendant had sent the two other car-loads, and expressed doubt about their ability to sell them at a dollar per thousand. "We did not intend to have you send more than one car of No. 1 shingles." In the seventh letter the defendant attempts to allay the anxiety or fear of the plaintiffs, in respect to the price for which they might be able to sell the shingles, and he says: “I don't want you to pay more than you can afford to, if it ain't but twenty cents per thousand I shall not blame. you. . . . Do the best you can, and I will not ship any more until you order." Thus far there has been no acceptance by the plaintiffs of the proposition of the defendant, or its terms, that he had sent them two more car-loads of shingles to be sold by them Gaveney and another vs. Gates. for what they could reasonably obtain, to be applied upon flour or feed that he might have of them during the fall or winter. Besides the acceptance of the proposition reasonably implied by the delivery of 100 barrels of flour of value supposed to be nearly equivalent to the proceeds of the three car-loads of shingles sold and to be sold by them, the plaintiffs made their formal acceptance by letter of the terms of the proposition: (8) From the plaintiffs to the defendant, October 7th, 1883: After speaking of the unfavorable chances of making sales of the shingles at the price supposed to be reasonable by the defendant, the plaintiffs say in this letter: "We are willing to do what we can to help you out on these shingles, but it looks to us as though it will take at least two years to dispose of them here. After realizing our freights, we will credit you with sales, as we have not money enough in our business so that we can afford to lock up so much." The ninth and tenth letters from the defendant to the plaintiffs of the 10th and 12th of October make no change in the above terms. The first asks for fifty barrels of flour, and says: "About the shingles, do the best you can out of them and that is all I want. I will not ask you for any money out of them, and don't want you to pay any more than you can buy the same kind at, and want you to have all the time you want to pay for them." The second speaks of Lockway wishing to purchase some of these shingles directly from him, and of his refusal, and of his referring him to the plaintiffs for that purpose, and says: "I trust, and I would rather you would take care of the shingles. Let him [Lockway] pay it to you, as that would pay both of us and suit me better; and what I want you to do is to sell the shingles if you can, and let me lose what there is to be lost, as you are not in any way to blame for the shipment. Any disposition you make of the shingles will be satisfactory." The eleventh letter and the last one having any bearing Gaveney and another vs. Gates. upon the terms of the contract, is from the plaintiffs to the defendant, dated October 15th. In this letter the plaintiffs speak of their efforts to sell Lockway a large bill of the shingles for one dollar per thousand and freight, and ask the defendant to refer him to them; and they close by saying: "I think we understand each other perfectly." We cannot but think that the true and fair construction of the language of these mutual letters, from which the terms of the contract between the parties are to be derived, is that the defendant sent the shingles to the plaintiffs to sell at the best price they could reasonably obtain, and account for the proceeds, deducting the freight and expenses of selling, and apply them in payment for any flour or feed which the defendant might have had of them. The defendant, under this contract, obtained from the plaintiff's 100 barrels of flour, at the rate of $4.75 per barrel, and the plaintiffs have had of the defendant 355,000 of No. 1 shingles to sell for him, and which they have sold and received the purchase price thereof in money, and paid thereon about $72 freight, to be deducted therefrom. It is true that the counterclaim of the answer, after an allegation of payment, goes upon a quantum meruit. But this is not inconsistent with the contract; for the best and fairest criterion of what the shingles were reasonably worth and of their market value is what the plaintiffs sold them for in market, so far as they are concerned. If the plaintiffs had sold these shingles at 50 cents per thousand, using reasonable care and diligence, and could not have gone into the market and purchased shingles of the same quality for less than one dollar per thousand, they would have thought it a great hardship, under this contract, to be compelled to account to the defendant for the price last named. And so if the plaintiffs had watched the chances of the market, and found some person who, under the stress of circumstances, would be willing to sell them shingles of a similar quality |