
    Butler v. Moses.
    
      Sale — Construction of ambiguous proposition in writing.
    
    1. In ascertaining the meaning of a written offer to sell, all its parts and words should be examined in the light of the circumstances, and, if pos- • sihle, effect given to each; and when such writing may have different meanings, and the receiver of such writing, on inquiry of a third person, is given the true intent and meaning of the sender of the same, such receiver of the writing, who, without further inquiry, acts upon the same and then seeks to hold the sender upon such writing, is bound by such true intent and meaning of the sender.
    2. Where a proposition to sell goods is sent by a writing that, by mistake, is ambiguous; and, knowing of such ambiguity, the receiver of the writing claiming an improbable meaning, unreasonably favorable to himself, and not intended or thought of by the sender, and without notice to the sender or inquiry of him as to his intended meaning, orders the goods, obtains, and uses them, such receiver of the goods is liable to the seller of the same for the value of the goods used, as if no proposition had been sent.
    Motion for leave to file a petition in error to the District Court of Portage county.
    Thomas H. Moses leased and was repairing a flouring mill. Joseph G. Butler kept a feed store, but he had new bolting-cloth for sale. Bolting-cloth is a silk fabric forty inches wide and of foreign manufacture, and it is worth from $2 to $6 per yard, according to fineness.
    On November 11, 1879, Moses sent Butler a letter, as follows :
    “ Wikdham, Ohio, November 11, 1879.
    
      'J. G. Butler, Esq., Warren, Ohio,
    
    
      “ Dear Sir : Capt. Prior is working for me, and as we wanted some No. 12 bolting-cloth, and perhaps some other, he thought you would likely have some, and suggested my writing to you. Please let me know by return mail what you have in that line and the price you hold it at, and oblige, Yours truly, Thomas Moses.”
    On November 12, 1879, Butler answered by postal card, as follows:
    “Dear Sir: Yours of yest’y to hand this morning, and in answer I would say that I have the bolting-cloth, but it is out at Ferrill Hill, but I will write for it immediately, and if you desire will send them to you, and you can use what you want and acc’t to me for what you need at 5 cts. a yard thakGale would ch’g you. Yours, etc., J. G. Butler.
    “ There is No. 9, 10, and 12, I think, and some coarser.”
    This card Moses showed to Prior, his miller, and asked him what he thought of it. Prior read the card and talked over the matter with Moses, and he said to Moses that new cloth was then worth.from $2 to $6 per yard, and he thought there was a mistake in the card — that the word “¿ess” was left out. This would show the offer was to let Moses have what he needed at five cents a yard less than Gale would charge him. They knew Gale was a man in Cleveland who sold bolting-cloth, and whose charges they knew, or they could obtain them. After this, and on the same day, Moseá sent Butler the following by postal card :
    “ Dear Sir : Please send the cloth up immediately and we will select what we can use. Yours truly, Thomas Moses.
    “ P. S. Perhaps we can use considerable.
    “ Windham, 0., November 12, 1879.'’
    The cloth was sent to Moses, and after it was received and examined Prior again told Moses there must be a mistake in the card, and he advised Moses not to put on-the cloth without further inquiry, and said that if he did he should expect trouble. At all times .Moses claimed that the caret offered the cloth at five cents per yard. Moses directed Prior to use the cloth. There is no dispute as to the amount and quality of this cloth that Moses used. What was not thus used was returned to Butler, and $1.03 was sent to pay for tne twenty and one-half yards of cloth used. Butler did not know of the mistake in the card, and did not understand whát Moses meant by sending so small a sum in payment of what cloth Moses used; and some three weeks thereafter he called upon Moses to fix up the matter. Moses then claimed that the card offered the cloth at five cents-per yard; and Butler claimed that by mistake the word “ less ” was omitted or left out in writing the card, as was manifest; and that the card did not offer the cloth at five cents per yard, but only offered the cloth at a priee five cents per yard less than Gale would charge him for the same. Moses refused to pay any more, and Butler sued Moses on the following account:
    “ Mr. Thomas Moses. To J. Gf. Butler:
    1879, December 8, 10£ yds. Pfo. 12 bolting-cloth @ 3.10..............$30.77
    “ ” “ 8£ “ “ 10 “ “ @ 2.60.............. 21.45
    “ “ “ 2 “ “ 5 “ “ @2.00.............. 4.00
    $56.22
    Less 5 cts. per yard (as agreed).............................................. 1.03
    $55.19
    By cash received by mail....................................................... 1.03
    $54.16.”
    
      After judgment before the justice of the peace, the case was appealed to the court of common pleas. In that court Butler filed his petition on said account, and averred that Moses was “ indebted to him in the sum of $54.16 for bolting cloth formerly belonging to plaintiff, and on or about the 8th day of December, 1879, converted by said defendant to his own use.” Moses denied the allegations of the petition. On the trial Moses claimed that he had purchased the cloth at five cents per yard; and the case was tried upon all the facts, and Moses gave in evidence Gale’s price list for bolting cloth. The court gave in charge to the jury certain requests asked for by Moses, but subject to the following portion of the charge, to wit: “ It is claimed by the plaintiff that the defendant acted in bad faith in this, that he knew at the time he received the card from the plaintiff’ that there was a mistake in it, and that it did not contain his real proposition; and also that the defendant knew at the time he received and used the cloth that it was worth vastly more than five cents a yard, and that the defendant intended to get an unfair advantage of the plaintiff in the transaction; while on the other hand the defendant claims he acted in perfect good faith, honestly supposing the cloth was only worth five cents a yard, and that the card of the plaintiff contained his real proposition. If you find that Moses knew, or had reasonable ground to know, that the cloth was worth a great deal more than five cents a yard, and that Butler’s card did not contain his real proposition for the sale of the cloth, and that there was a mistake in the card, and that Moses, with such knowledge or such ground of knowledge, received and used the cloth, hoping and intending thereby to gain an unfair and undue advantage over Butler in the transaction, then the plaintiff can recover. But, on the other hand, if Moses acted in good faith, honestly supposing the cloth was worth only five cents a yard, and with no intent to gain an unfair advantage over Butler, then the plaintiff can not recover.”
    After verdict for Butler, a motion for a new trial was overruled and judgment was entered, and a bill of exceptions was taken. The district court reversed the judgment of the court of common pleas for error in the charge of the court, and Butler now seeks to reverse the judgment of the district court, and to affirm the judgment of the court of common pleas.
    
      George P. Hunter, for the motion.
    P. B. Gonant, contra.
   Follett, J.

No objection was made to the form of the pleadings, and it seems that all the facts of the case were presented to the jury that found in favor of Butler.

The doubt is in regard to the offer made in the postal card. What did Butler offer when he wrote, “ If you desire will send them to you, and you can use what you want and account to me for what you need at five - cents a yard that Gale would charge you.”

Gale was known by the parties to be a dealer in bolting-cloth, and what he would charge, was easily ascertained.

What Gale would charge was referred to as a standard of price. There is no other reason why Gale’s name was mentioned, or why what he would charge was referred to. And, on examination of all the card contains, it is clear that Butler did not make an unqualified offer to sell the cloth at five cents per yard, as neither five cents nor ten cents per yard could be what Gale would charge; but his offer was to charge either the same as Gale would charge, or more than Gale would charge, or less than Gale would charge.

In the circumstances the latter meaning was so” manifest that Prior, on reading the card, saw its true intent, and told Moses that Butler’s offer was to sell the cloth for five cents a yard less than Gale would charge him, and that it was not to sell at five cents a yard. And Moses, by thus sending for the cloth and using it, is bound by the trjia^ offer thus explained and known to him. But if Moses’ claim be true that he did not accept the offer, to sell for five cents a yard less than Gale would charge him, the minds of Butler and Moses never “ assented to the same thing in the same sense,” and no contract was made by them for the sale of this cloth. And in this view, as Moses has taken Butler’s cloth and put it to Moses’ use, Moses is liable to Butler for the value of the cloth so used. In this view Moses would not be entitled to the discount of five cents per yard which Butler gave him.

In either view of this case Moses is liable to Butler for all that was claimed in the petition in the court of common pleas, and the charge of the court was not to the prejudice of Moses.

The district court erred in reversing the judgment of the court of common pleas.

The motion is therefore granted, the judgment of the district court reversed, and that of the common pleas affirmed.  