
    The Bellaire Stove Co. v. The Midland Steel Co.
    
      Contract settled by correspondence — Order given in pursuance thereto — Cannot change the contract, when.
    
    All the terms of a contract being definitely settled by correspondence, an order given by one of' the parties pursuant thereto should not be regarded as changing the contract, unless such change clearly appears to be intended.
    (Decided February 25, 1902.)
    Error to the Circuit Court of Belmont county.
    The Steel Company brought suit in the court of common pleas to recover of the Stove Company on the following account:
    
      8032 482 shts, 10xl5%x21%, weight 6,390
    508 “ 12xl6%x27ys, “ 6,909
    477 “ 14xl8%x32%, « 6,193
    503 “ 16xl9y8x36, “ 6,005
    449 “ 18x211/4x40%, “ 5,339 — 30,796
    Price..............$3.30, amount $1,016 27
    Less freight, 30,100 lbs. @ 12c........ 36 12
    Stove Body. Total.......,.......$ 980 15
    The case coming on for trial upon issues joined, it appeared that the controversy arose out of a contract entered into by the correspondence following:
    Muncie, Ind., 2-27th, ’99.
    
      Bellaire Stove Co., Bellaire, Ohio:
    
    Gentlemen — Replying to your letter, of the 25th inst., beg to state we make a specialty of very fine polished body steel for oak stoves, being soft, smooth and a solid even color throughout the sheet. We, also, guarantee it to stand beading without scaling. Our price on this stock in No. 18 gauge would be $3.30 delivered.
    Soliciting your order, we are, yours truly,
    Midland Steel Company,
    (Signed) R. J. Beatty.
    Muncie, Ind., 3-9th, ’99.
    
      Bellcdre Stove Works, Bellaire, Ohio:
    
    Gentlemen — We received your inquiry about ten days ago for price. We quoted you a very favorable figure for our polished oak stove body material. We are today sending you sample. Please examine same and see if you cannot give us your order, as we are entirely sure we are offering you material you could not buy elsewhere.
    Yours truly,
    Midland Steel Company,
    R. J. Beatty. (Signed)
    
      Bellaire, O., 3-17, 1899.
    
      Midland Steel Go.:
    
    Will accept proposition on 18 iron; will want five thousand bodies. Will mail sizes. Wire answer.
    (Signed) Bellaire Stove Co.
    Muncie, Ind., March 17, 1899.
    
      Bellaire Stove Go., Bellaire, Ohio:
    
    We have hooked your order for five thousand oak stove bodies.
    (Signed) Midland Steel Co.
    Muncie, Ind., March 23, 1899.
    
      Bellaire Stove Go., Bellaire, Ohio:
    
    Gentlemen — We received your telegram on the 17th accepting our quotation and advising that you would require 5,000 bodies. You also stated that you would mail sizes. Up to this writing we have not received them. As this is an extremely busy time of the year would suggest that you send these sizes in at once so as to give us as much time as possible to get them out.
    Yours truly,
    (Signed) Midland Steel Company.
    Bellaire, O., March 27, 1899.
    
      The Midland Steel Go., Muncie, Ind.:
    
    Gentlemen — Please ship us 200 each of the following sizes May 1, 200 June 1, 200 July 1, 200 August 1, and 200 September 1:
    No. 10 — 15%x21%.
    No. 12 — 16%x27%.
    No. 14 — 18%x32%.
    No. 16 — 19i/8x36.
    No. IS — 21^4x40%. •
    Tours very truly,
    The Bellaire Stove Co.,
    H. Roemer, Sec. and 'Treas.
    
      Muncie, Ind., 3-29th, ’99.
    
      Bellaire Stove Works, Bellaire, Ohio:
    
    Gentlemen — Receipt is hereby acknowledged of your order of the 27th inst., calling for 5,000 sheets polished stove body steel. We note you call for shipment of 1,000 sheets Aug. 1st. We would have to make this shipment with the quantity for July 1st, as we will be closed down during the month of July on repairs, stock taking, etc. Same will receive our best attention and you will get very fine material.
    Yours truly,
    Midland Steel Company,
    (Signed) R. J. Beatty, President.
    Other correspondence conducted after the controversy arose, in no way affects the terms of the contract. Prior to the conclusion of this correspondence plaintiff had sent to the purchaser a sample of 18 gauge iron but none of any other gauge. The plaintiff, construing the numbers prefixed to the sizes given in the defendant’s letter of March 27,1899, as indicating gauges, or thickness, instead of sizes, of plates, shipped a quantity of material of the gauges of 10,12, and 11, which being too thick for the defendant’s use, were not accepted. The plaintiff offered testimony to show that it is customary to prefix numbers indicating gauges to sizes, and that others accustomed to dealing in the same articles would have interpreted the letter of March 27, 1899, as it did. That evidence was excluded. The court instructed the jury that the correspondence constituted a contract which it was its duty to interpret and that by the contract so entered into the defendant became bound to accept and pay for 18 gauge sheets and none other. The verdiet and judgment in the common pleas were for the defendant, a motion for a new trial being overruled.
    The motion was upon the three grounds following:
    First — For error of law occurring at the trial and excepted to by the plaintiff.
    Second— For error of the court in rejecting testimony offered by the plaintiff.
    Third— The court erred in its charge to the jury.
    This judgment was reversed by the circuit court for error in overruling the motion for a new trial.
    
      Mr. George Duncan and Mr. O. L. Weems, for plaintiff in error.
    
      Messrs. Driggs & Heinlein and Mr. J. A. Gallagher, for defendant in error.
   By the Court :

It is not to be supposed that either the learned judges of the circuit court or counsel for plaintiff in error deny the duty of the court to determine the meaning of a contract into which the parties have entered, or that they regard evidence of usage as competent to vary the unambiguous terms of a contract. Their view appears to be that the trial judge erred in regarding the contract as too clear to be affected by evidence of usage and in giving to it the conclusive effect which required a verdict for the defendant. Attention to the negotiation of the parties seems fully to justify the view of the contract which was taken by the trial judge. The vendor furnished a sample of an 18 gauge sheet and none other. It gave the price of that gauge and none other. The purchaser’s communication of March 17, 1899, was a definite acceptance of the proposition for sheets of that gauge, leaving nothing for future determination or information except the sizes of the required sheets. That communication and the vendor’s letter of March 23d, show that in the minds of both the gauge was fully determined, and that nothing remained to be done except for the purchaser to furnish information as to the sizes required. Nor did the letter of March 27th modify the terms of the contract so definitely settled. By its express terms it was but a compliance with the vendor’s request and the purchaser’s promise to furnish the “sizes” of the sheets desired.

Judgment of the circuit court reversed and that of the common pleas affirvied.

Williams, C. J., Burket, Spear, Davis, Shauck and Price, JJ., concur.  