
    Julius B. Stilwell and George W. Stilwell, Jr., Respondents, v. The Ocean Steamship Company of Savannah, Appellant.
    
      Contact for the transportation of merchandise — evidence of an intention to make it.
    
    On the 3d day of August, 1891, a steamship company, by telephone, asked a , firm of forwarders for transportation rates on 6,000 barrels of rosin to Chicago and 2,300 barrels of rosin to Buffalo, to which the Arm replied, naming certain rates, which the company requested the firm to confirm by letter, which they did, and at the same time asked to be advised if the rates were accepted. On the following day the company, by letter, accepted the rates, and thereafter a portion of the freight was furnished by the company, but it failed to ship the remainder, because of which default on its part the firm brought an action to recover the damages resulting from the breach of the contract.
    
      Held', that it was evidently the intention of the parties to enter into a valid and mutually obligatory contract, and not merely to agree upon a statement of rates;
    That the defendant was liable for the damages resulting from the failure on its part to furnish the merchandise for transportation.
    Appeal by the defendant, The Ocean Steamship Company of Savannah, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of May, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 7th day of May, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought by the plaintiffs, who were forwarders, to recover for the breach of an alleged contract, whereby the .defendant had agreed to deliver to them for transportation, at certain specified rates, several thousand barrels of rosin.
    The main facts upon which the question of law depends are fairly stated by the learned trial judge hi his charge to the jury as follows :
    The evidence shows, and in that regard the evidence is undisputed, that on the 3d day of August, 1891, the defendant communicated with the plaintiffs over the telephone, and asked the plaintiffs what their rates would be for the transportation of 6,000 barrels of rosin to Chicago and 2,500 barrels of rosin to Buffalo. The answer was that the rates would be, on the 6,000 barrels of rosin to Chicago, twelve cents per 100 pounds, and on the 2,500 barrels of rosin to Buffalo six and one-half cents per 100 pounds. The reply was that that was satisfactory, and the plaintiffs were thereupon requested to confirm it by letter.
    In pursuance of that request the plaintiffs addressed the following letter, which is in evidence, bearing date August 3, 1891, to the Ocean Steamship Company, the defendant in this ease, in which they state as follows :
    “Gentlemen.— Herewith confirmed, the rates quoted you over the telephone this day, viz., 6,000 his. of rosin, N. Y. to Chicago, 12 cts. per 100 lbs.; 2,500 l)ls. rosin, N. Y. to Buffalo, 6-£ cts. per-100 lbs. Please advise if accepted.
    “ Yours truly,
    “ G. W STILWELL, Jr., Mgr.
    
    O —
    “ Inland Transportation GoG
    
    And thei'. follow the words, “Buffalo quotation is for shipment this month; ” that is, for the month of August.
    Pursuant to the request which was contained m that letter, that the defendant would advise the plaintiffs if this proposition or offer was accepted, a letter was addressed by the defendant’s agent to ono of the plaintiffs, Mr. George W. Stilwell, J r., on the following day, which reads as follows:
    
      “Me. Geo. W. Stilwell, Jr., G. M.,
    “ Inland Transportation Company,
    “ 109 & 111 Broad St., N. Y. City :
    “Dear Sie.— Yours of August 3d, confirming rates on rosin to Chicago and Buffalo, received, and we beg leave to accept same.
    “ Yours respectfully,
    “ R. L. WALKER, Agt.,
    
    “ Per Hoffman.”
    
      William N. Cohen and Henry L. Scheuerman, for the appellant.
    
      Robert D. Benedict, for the respondents.
   Barrett, J.:

The defendant claims that no contract was proved by the facts above stated, and that the transaction evidenced thereby amounted to nothing more than an agreed statement as to the rates. If that was the understanding of the parties they would hardly have resorted to formal writings upon the subject. The intention surely was to do something more than convey information. The intention was clearly to bind. The letters were not written merely to refresh the recollection of the people who had spoken to each other at the telephone, nor to keep a record of a passing conversation. It will be observed that there is nothing indefinite either in the telephonic communication or in the letters. Every element of a contract' is clearly specified. The precise number of barrels is stated, the charge per pound for transportation, the place where the goods are to be received and where they are to be delivered. As to part of the goods, shipment is limited to the very month when the arrangement was made. Thus the case is distinguished from The C. & G. E. R. Co. v. Dane (43 N. Y. 240), where the defendant offered by letter to receive iron not to exceed a certain number of tons. It is true that, in the case at bar, the parties do not literally use the words “we agree to transport 6,000 barrels of rosin from New York to Chicago at 12 cts. per 100 pounds, and 2,500 barrels of rosin from New York to' Buffalo at 6-J- cts. per 100 pounds.” But the agreement upon the one side to furnish the rosin for transportation, and, upon the other, to transport it, is plainly to be implied from the language used. These were business men. They were not drafting a legal document when they wrote these letters. They were making their contract in their own way, and expressing themselves in their common parlance. It was either that, or an immense amount of precise formality about nothing. The letters were senseless unless the parties intended to contract, and there could be no binding contract about a rate disconnected with a contract to transport at such rate. The defendant requested a written confirmation of the telephone arrangement. The plaintiffs requested a written acceptance of that confirmation. All this was surely not meant to put each other upon honor, or to effect a mere option. When one side confirmed the rates quoted, that was the carriers’ short, mercantile way of saying that they would transport at those rates. When the other side accepted the confirmed rate, that was the shipper’s or brother carrier’s short mercantile way of saying that it would furnish the goods and pay the rates.

There was no question to go to the jury as to the intention 01 the parties. It was a pure question- of law upon the plain language of the letters which followed the telephonic communication. Nor was there evidence suggestive of any other possible meaning than that fairly apparent upon the face of the writings, construed with reference to such previous communication. Indeed, the surrounding circumstances, and everything which subsequently transpired, are conclusive in favor of the construction put upon these letters by the learned trial judge. There was not a particle of evidence favoring any other construction. The defendant’s agent, Walker, testified that a year before this transaction, the plaintiffs notified it that “rates to hold good must be accepted.” It seems that the defendant had previously suffered from the lack of a binding contract, and had found itself helpless when rates were suddenly advanced. It was, doubtless, to prevent this state of things that it was determined, in future, to make binding arrangements with regard to the rates. But how would that avail if, as the defendant contends, the carriers were not to be bound by their engagement, nor the shippers (who were brother carriers) by their acceptance thereof ? It is only upon the construction that they were bound, and that an agreement with regard to the rates, specifying with precision the goods to be carried, was an agreement to transport the particular goods so specified at those rates, that common sense can be attributed to their acts. That the defendant understood the contract as thus interpreted is 'accentuated by what subsequently transpired. The defendant furnished a part of the goods. When the plaintiffs, in writing and verbally, requested it to furnish more there was no suggestion of a defective contract, no intimation of the non-existence of a binding obligation. On the contrary, the defendant’s chief cleric testified that the only reason why the second lot was not given to the plaintiffs was that they were not sufficiently prompt in taking it when offered. He did not then claim that the defendant was not bound to give the plaintiffs the whole lot. All that he claimed was that the second lot had been offered to them in the regular 'course of business — naturally under the contract' — and that they had not sent a boat for it in due time. This chief clerk also testified that he made no arrangement with other parties to transport this second lot until after the plaintiffs’ failure to send the boat for it, thus contradicting the statement made by Mr. Walker in a letter which he wrote to the plaintiffs on September 15, 1891 (when owing to the plaintiffs’-firm insistence upon what they characterized as a well-understood arrangement the issue had to be met), to the effect that the defendant had secured better terms from the plaintiffs’ competitors as far back as the fourth of August. This letter of Mr. Wallcer’s was evidently written to present the defendant’s side of the case in as favorable an aspect as possible, and it is significant that its statements should be controverted by his own employees. It is equally significant that in this letter Mr. Walker could only account for the delivery to the plaintiffs of the first lot, notwithstanding that, upon his own showing, these goods should, in the regular course of business, have gone to the plaintiffs’ competitors from whom he said the defendant had received better terms, by the suggestion that they were delivered to the plaintiffs “in error.”

We think it clear that the defendant understood the contract precisely as the plaintiffs did, but having decided to break its bargain and to deal with others it sought to avoid its terms by the shallow pretence of an original misunderstanding. The case is clearly within the principle stated by Grover, J., in The C. & G. E. R. Co. v. Dane (supra), that if the plaintiff there had accepted the defendant’s proposition for the transportation of any specified quan tity of goods a contract mutually obligatory would have resulted therefrom, for the breach of which by either paPy the other could have maintained an action for the recovery of the damages thereby sustained. That is this case. The contract here was mutually obligatory. The plaintiffs could not, after their letter and the defendant’s reply, advance the rates for the transportation of the particular 8,500 barrels of rosin specified .therein. They were thereafter bound to take the goods and transport them at the confirmed and accepted rates. The defendant had the corresponding obligation to furnish the particular goods for transportation at these rates. The contract was not unilateral. It was mutually obligatory and either party would have been liable for its breach.

As to the damages the jury awarded a less sum than the evidence warranted. We think the damages were fairly proved, and that no error was committed on that head. No other question is presented calling for special consideration. We find no error in the record, and the judgment and order denying the defendant’s motion for a new trial should be affirmed, with costs.

Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

Judgment and order affirmed, with costs.  