
    J. R. Thames & Co. v. The Miami Valley Lumber Co.
    
      (Decided December 7, 1934.)
    
      Mr. L. J. Zilioso, for plaintiff in error.
    
      Messrs. Baden <& Fiehrer, for defendant in error.
   Hamilton, P. J.

The plaintiff in error here, J. R. Thames & Company, was plaintiff below, and brought an action against The Miami Valley Lumber Company on an account for a car of lumber sold and delivered. The amount sued for was the sum of $178.32, with interest. The defendant lumber company admitted the amount due the plaintiff, and in a cross-petition claims that it orally purchased from the plaintiff the items set forth in the plaintiff’s amended petition, together with certain other items, which are specifically set forth in the cross-petition, and alleges that there was a failure and refusal to deliver as to the other items, wherefore it became necessary for defendant to go into the open market and purchase the items. They were purchased in the open market at existing prices, the amount exceeded the contract price in the sum of $69.75, and defendant asks in the cross-petition that the amount of the excess costs be deducted from the amount sued upon, and the difference was deposited by the defendant lumber company with the clerk of the courts, claiming that amount only to be justly due.

The plaintiff filed an answer to the cross-petition of the defendant, denying that the defendant orally purchased the items claimed, and avers that the defendant lumber company gave orders to plaintiff’s salesman, known as orders No. 27-B and No. 28-B, and claims that the orders were taken subject to acceptance by the plaintiff, of which fact the defendant was advised; that the plaintiff advised the defendant it could not handle the items mentioned in order No. 28-B, the mixed car of siding and shingles, and advised the defendant if it did not wish order No. 27-B shipped to wire plaintiff, at its expense; that defendant did not wire, and thus accepted the car of lumber for order No. 27-B.

The case was tried to the court, a jury being waived. Whereupon the court allowed the amount claimed on the cross-petition against the amount claimed in the amended petition, and entered judgment accordingly. From that judgment, the plaintiff below prosecutes error to this court.

The real question in the case is whether the order was given by the defendant lumber company subject to acceptance by the plaintiff company, and this' proposition involves the question whether the plaintiff’s soliciting agent could enter into a contract which would bind the plaintiff company. The rule is that where an agent fails to disclose lack of authority to bind his principal, and under the circumstances and the course of dealing the buyer has reason to believe the agent has such authority, the principal cannot be heard to say that its agent had no authority to enter into such contract.

The facts as disclosed by the record are that one Wilkinson, a resident of Cincinnati, Ohio, was a salesman employed by the J. R. Thames & Company, plaintiff in this action, and had been so employed for several years; that he had at different times sold orders to the Wespeiser Lumber Company; that The Miami Valley Lumber Company was the successor of the Wespeiser Lumber Company, and that one of the Wespeisers was with The Miami Valley Lumber Company as manager.

It appears that on or about the 21st day of August, 1932, Wespeiser, the manager of The Miami Valley Lumber Company, called Wilkinson, whom he knew, telling him he wanted to place an order for a car of yellow pine and a car of West Coast products, and that he wanted immediate delivery. Wilkinson told him that the order would he shipped at once, and that he would wire the car numbers, Wilkinson testifying, “I left Mr. Wespeiser a quotation on a previous visit in Oxford; he called me and gave me this business over the phone.”

Wilkinson wrote up the order in Cincinnati, putting it in two order forms, No. 27-B and No. 28-B. The orders were not submitted to The Miami Valley Lumber Company, but were sent by Wilkinson direct to the Thames company.

It is clear the order was given over the telephone for agreed prices, and for prompt shipment. Wilkinson further testified that the order was given over the telephone, and that there was nothing said in the conversation about acceptance by his company.

On August 31,1932, J. R. Thames & Company wrote a letter to The Miami Valley Lumber Company, as follows:

“ J. R. Thames & Company,
“Birmingham, Ala.,
“Aug. 31, 1932.
“Miami Valley Lumber Co.,
“Oxford, Ohio.
“Gentlemen:
“We enclose herewith acknowledgment of order covered by our No. 27-B and we will get this stock right out to you.
“We regret to advise, however, that we are not in a position to handle the mixed car of Siding and Shingles but wish to thank you very much for the offer of this business.
“If for any reason you do not wish us to ship Order 27-B since we cannot furnish the other car kindly wire us at our expense. Not hearing from you by wire, however, we will arrange to máke shipment of this order promptly and trust that our inability to handle the West Coast order has not inconvenienced you.
“Yours truly,
“J. R. THAMES & COMPANY, “By J. Thames.”

If the contract was completed through the telephone communication with Wilkinson, this letter was a declared breach of that contract. The Miami Valley Lumber Company was not called upon to respond as to any future action or conduct by the Thames company, but had a right to rely on the contract as made. It received the car covered by the order designated by the plaintiff company, No. 27-B, and admits its indebtedness for that car. The items covered by the balance of the contract order not arriving, and shipment having been refused, as disclosed by the letter, The Miami Valley Lumber Company had the right to go into the open market and buy like goods at the market price. The Sales Statute so provides, Section 8446 et se.q., General Code.

The question occurred as to whether the acceptance of the car designated No. 27-B was a release under the original contract. The contract was a single order, and the fact that the purchaser received a part of the items, which would tend to minimize the damages caused by the breach, would not opérate as a release under the original contract.

Our conclusion is that the evidence supports The Miami Valley Lumber Company in its claim, that it had contracted through Wilkinson, and Wilkinson’s company will not be heard to deny the contract; that the letter of August 31, 1932, and the refusal and failure to ship the other items constituted a breach; and that the measure of damages was the difference in the cost to The Miami Valley Lumber Company, the amount of which is not in dispute.

We find no prejudicial error in the record, and the judgment is affirmed.

Judgment affirmed.

Cushing, J., concurs.  