
    NO. 8080
    COURT OF APPEAL PARISH OF ORLEANS.
    A. MARX & SONS versus JOHNSON IRON WORKS LTD.
    
      
    
   Dinkalspiel! J,

This suit involves the question, whether or not plaintiff bought from the defendant, the steam yaoht oalled the Huntress, and defendant failing to deliver, if they are responsible for damages; the allegations being that defendant did on or about February 13th, 1919, oommenoe negotiations with plaintiff looking to the sale Of the yaoht Huntress, for a certain prioe, without disclosing the name of the prinoipal to whom the yaoht belonged, and that plaintiff brought said yaoht and failing to receive his property has brought this suit for damages, claiming the sum of Fifteen Hundred Dollars.

The answer substantially, whilst admitting the writing of oertaln letters referred to in plaintiff's petition and admitting that defendants offered at one time to sell to plaintiff, the launch Huntress, for the sum of Five Hundred Dollars, being by letter dated February S4th, 1919, but that said offer was expressly conditioned upon prompt aoceptanoe and averring further that said offer was not promptly accepted, the offer cancelled and there was no actual acceptance of the offer; defendant denies the alleged value put by plaintiff on said yaoht and asserts that no matter what the value may have been, they are not responsible to plaintiff as they, plaintiff, did not acoept the offer when tendered.

Looking at the correspondence between these parties we find a telegram from the owner, James Deitrlok, dated New York, February 4th, 1919, addressed to Warren Johnson, Manager Johnson Iron Works, which reads:

"Yours 30th Just received, please secure customer for Huntress if possible, if no customer authorize you sell at best advantage to Junk dealers."
February 13th, 1919, there follows this letter.
"A. Marx & Sons,
643 Tohoupitoulas Street,
New Orleans, La.
Dear Sirs:-
We have what is left of a 90 ft. steam launch in the river moored at our Algiers wharf. It came from the Naval Station and is for sale.
Would you look at it and make us an offer on same.
Very truly yours,
THE' JOHNSON IRON WORKS, LTD.
(Signed) Geo. Koffskey
Superintendent."

We find further the answer to this letter, addressed to the Johnson Iron Works, Ltd., New Orleans, La.

"Gentlemen:—
Your communication of the 13th received. One of our representatives will call on your Mr. Geo. Koffskey within fiext few days to look over your Launch for sale, and will submit you proposition on same.
Yours truly,"

This letter was followed by a letter addressed to Johnson Iron Works, Algiers, La.

"Gentlemen:-
Confirming conversation with your Sir. KofBky this morning we can offer you $500.00 for the steam yacht Huhtress which is moored near your dock and which our Mr. Hunt inspected yesterday.
This offer is made with an understanding that all the parts necessary to the operation of the boat are with it excepting the wheel and compass which we understand are missing. In other words just what was seen and inspected by Mr. Hunt is covered in this offer.
Trusting that your principal will see fit to aocept it. We are,
Yours very truly,"

On the 34th of February, 1919, defendant wrot to plaintiff as follows:

"Mr. Maurice F. Hunt, Gen'l Manager,
A. Marx & Sons, Machinery Department,
1645 Tchoupitoulas Street,
New Orleans, La.
Dear Sir:-
Yours of the 30th reoeived as regards the Steam Launch "Huntress", saying with an understanding that all parts necessary to the operation of the boat are with it excepting the wheel and compass.
Now as a matter of fact, We have never had an inventory made of the parts not considering it necessary for economy.
If you take the boat as it lays, without the ropes that tie her to our wharf, you are welcome to it for $500.CO cash.
Please advise promptly*
Very truly yours,
THE JOHNSON IRON WORKS, LTD.
(Signed) Geo. Koffskey, Superintendent."

Maroh 35th, 1919, we find a letter addressed to Mr. Maurice F. Hunt, Manager, A. Marx & Sons.

"Your offer o.f $500.00 for launch "Huntress” was not aooepted and furthermore the owner arrived in the City last even- ■ ing from Hew York and at 5:00 PM had the Huntress taken from our wharf to the New Orleans Pry Book. He sold the boat to someone else.
Sorry but oould not be ohanged.
Yery truly yours,
THE JOHNSON IRON WORKS, LTD.
(Signed) Geo. Koffskey
Superintendent.”

And to this letter plaintiff wrote the following reply the next day, the 36th of Maroh, addressed to the Johnson Iron V/orks.

"We have just reoeived your letter of the 35th advising us that the owner has not aooepted our "offer" of $500.00 for the launoh "Huntress" and that he has sold the boat to someone else.
We beg to advise you that we made no "offer" for the purohase of this boat at $500.00. We have a oontraot for the purchase of this boat for $500.00 oonfirmed to you by our letter of Karoh 18th. We oannot aooept the cancellation of this oontraot on Maroh 36th. In as muoh as'you aoted for an undisclosed principal you would be responsible. We think you should bring this home immediately to the owner because he, of oourse is likewise responsible and by so doing you will proteot yourself.
We are writing this letter in duplioate, and ask that you kindly sign and return one oopy to bearer.
Yours truly?

There are several other letters in oonneotion with this matter but none, of themselves sufficiently important to in any wise bear on the result.

We have oarefully examined all the testimony in this oase.

The first witness,one of the plaintiffs, Mr. Edward Marx knows nothing about this oase exoept what his Manager, Mr. Hunt advised him, and sometime subsequent going on the boat to make an examination to asoertain the value.

Mr. Hunt testifies quite at length, giving hie oonneotion and his duties with plaintiff, identifying the various letters that we have quoted; he swears that he represented plaintiff in the dealings with the defendant in this oase and also testifies to a telephonic conversation that he had with Mr. Koffskey, Superintendent of SsfadnsHt defendant's works and amongst other things says "an after considering the boat I wanted to know if it was still in taot or if anything had been removed from the ■boat as It was In the original state when we first started to e&. amine it, he said nothing had been removed, it was exaotly as it was some two week# before, then X asked him what he thought of the vessel, he said X think its a very good buy, its a bargain, when asked what the oost of reapirs would be Mr. Koffskey replied that he oould not say as to that, X asked him if he oould still have the vessel for $500.00, the prioe he had stated to me, he said yes, you oan have it for $500.00, I said X will write today and oonflrm it"; and then goes on to testify about storing the boat and what arrangements he oould make and that Mr. Koffskey answered "X would have nothing in the world to do with that"and also that he had made photographs of the vessel, further that he hod offered this boat to Mr. Sohwartz for $3500.00 and that Mr. Sohwartz finally agreed to pay him $1500.00, further testified about the vessel being removed and by whose authority and when he was told the name of the owner, he had' never heard of it and it had never been mentioned prior to this time, he also spoke of the value of the vessel, what it oould be sold for. Doubtless his fsaickixjsiiias familiarity and his axperienoe entitles his testimony in that regard to great weight.

On Oross examination.

Q, Ms. Hunt, you reoeived this letter whioh is marked P6 and was written February 34th, 1919, about the date it was written os a day or two later did'nt you?
A. Yes eir.
Q, That was after you had inspeoted the vessel, wasn't it?
A, Yes; after my first visit to the vessel.
Q. And you never aoted on this offer to sell the Huntress for $500.00 until Masoh 18th?
A, Ho, X didn't aooept the offer until then.

Tho other witnesses, without naming them simply give their opinion as to the value of the vessel.

The witnesses summoned on behalf of defendant were Warren Johnson, X, D, lloHair, G, M. Graoe and George Koffskey.

The witness Koffskey, after stating Ms position with the defendant as general Superintendent and giving the time he was oonneoted with the oompany, forty six years, says:

Q. Do you remember a conversation you had over the phone with a Mr. Hunt, of A. Marx & Sons, on Maioh 18, 1919, relative to the sale of the yacht Huntress?
A. Well, Mr. Hunt was on the phone. X don't hear very well on the phone, and I called Mr. Graoe to say what was to he said.
Q. Then what happened.?
A. Mr. Graoe spoke about the boat, about the $500,00 and I told Mr. Grace to tell him before we oould sell the boat to him X would notify Mr. Warren Johnson who would get in touoh with Mr. Dietrioh being as Mr. Hunt had spoken about a bill of sale, or something.
Q. Did that close the conversation?
A. That was the whole conversation.
Q. Did you tell Mr. Graoe to tell Mr. Hunt he oould have the boat for $500.00?
A. $500.00 oash, but when he asked for a bill of sale that made a difference, and I told Mr. Graoe at the time to tell him that it would be referred to Mr. Warren Johnson, the manager, and he in turn would get in touoh with Mr. Dietrioh, the party that sent the boat there from the naval station.
Q. (at page 15) Did you ever make a oontraot to.sell the Huntress to A. Marx & Sons for $500.00?
A. Hever. I just communicated with three Of the junk men by letter, and received no letter, until some time after, and I think Mr. Hunt came to the shop to see what was on the boat, and I sent him to one of the men on the outside, outside foreman, I doroit know whether Mr. Amrstrong or Mr. Roup, at the time they were working on the wood ships, installing the machinery. After that I heard nothing more, except about Mr. Hunt phoning there, add then I got Mr. Graoe on the telephone.

On Cross examination.

Q. Mr. Koffskey, in that conversation over the telephone did you not either say yourself, or have Mr. Qraoe eay, that the boat oould he purohased for $500.00 oash?
A. We offered the boat for $500.00 oash, yes, sir.
Q. Tou renewed that offer in the telephone conversation?
A. We offered that by oommunioation, a letter.
Q. Didn't you do it also in this telephone conversation, telling him he oould have it for $500.00 oash?
A. Hot that I remember.
Q. (page 16) X show you letter dated Maroh 18, 1919, already introduced in evidence as P-6, and ash you if you received the original of that letter?
A. I never sold the boat.

"The sale was not made beoause questions had to be asked outside." Mr. Grace, a witness on behalf of the defendant and referred to by Mr. Koffskey as the man he employed, not hearing well, to go to the telephone and receive and answer communications, after stating his position with the defendant of the Company, says:

Q. Do you remember anything about a oonversation over the telephone between Mr. Koffskey, the manager of the Johnson Iron Works and Mr. Hunt, of A. Marx & Sons, on Maroh 18, 1919, relative to the sale of the Yacht Huntress?
A. Mr. Koffskey, the superintendent. I think it was the 17th or 18th of Maroh that he buzzed to me, calling me from the offioe. When he got a telephone call he generally called me in, for anything like that, beoause he don't hear distinctly. He handed me the phone and said "Marx is on the phone," and he told me to tell them that the $500.00 offer would'nt be accepted until they submitted it to Mr. Warren Johnson, who would submit it to the principal. And there was also something about a bill of sale, that they had to have a bill of sale, they asked for it, and they told him they would have to get that. They didn't know anything about that.
Q. (at page 10) What was done with the offer of $500.00?
A, Mr. Koffskey wrote me a note to hand to Mr. Johnson when he oame In. He didn't oome that evening. X put it on hie desk. Next day he diotated a telegram to Mr. Dietrioh, at Hew York, telling him what Marx had' offered for the boat.

And then this witness testifies that "In the latter part of Maroh, on the 25th or 36th, Mr. Dietrioh, the owner, walked Into the of-fioe about 6 o'olook when nearly everybody had left but Mr. Wilmer Johnson and X. He saw Mr. Johnson and Mr. Johnson oalled me and told me Mr. Deitrloh was there to take the Huntress, and if it had been sold, and X told him no, and he asked why X said no. X said I had the oorrespondenoe and I had followed the oase up, handling it for Mr. Koffskey.

Then the witness goes on and relates the taking of Xhii of possession of the Huntress by the owner and telephoning Mr. Hunt the next day to that effeot.

Q, What did he say?
A. Didn't say anything; hung up the phone.

We have thus quoted from portions of the testimony of the witnesses in this oase, which we considered material to this decision and we find that neither in lawmr in faot was there an absolute sale of the yaoht Huntress to plaintiff by defendant; there were undoubtedly negotiations between these parties but in our opinion they oame to no conclusion.

Art; 1797. COÍJSMT; COMMOTIO ATIOIT OK. "When the parties have the legal oapaoity tafig to form a oontraot, the next requisite to its validity is their consent. This being a mxaxa mere operation of the mind, can have no effeot, unless it be evinced in some manner that shall oause it to be understood by the other parties to the oontraot. To prevent error in this essential point, the law establishes, by oertain rules adapted to the nature of the oontraot, what oiroumstanoes shall be wvidenoe of suoh consent, and how those oiroumstanoes shall be proved; these oome within the purview of the law of evidence, “

Ait. 1798. Proposal and Acceptance. "As there mast be two parties at least to every oontract, so there must be something proposed by one and accepted and agreed to by another to form the patter of such oontract; the will of both parties must unite on the same point."

In the oase of Holtzman vs. Millaudon, cited in the 18 Annual at page 39, the syllabus reads:

"A legal agreement is a concurrence of two minds upon the objeot and consideration of a oontract. The will of both parties must unite on the same point.
A olaimant must establish his claim with legal certainty. It is not enough that he make it probable."

Also see Reinecke vs. Bernhardt, 13 Court of Appeal Reports, p. 57.

We might go on to oite numerous authorities to the same effect, but we deem it unnecessary.

What we have quoted at length from the testimony of the witnesses in this case does not to our minds satisfy the law in reference .to sales ' afcsi8&xS8»SBX8»M8X»sa«*»xth±sxi3E:cax£ and under these circumstances we conclude that the judgment of the Lower Court is oorreot.

For the reasons assigned it is hereby ordered, adjudged and deoreed that the judgment of the Court aquo be and the same is hereby affirmed and costs of both Courts to be paid by plaintiff.

—Judgment Affirmed—  