Doll Smith v. A. S. San. Dairy Co.

Morling, J.

On June 9, 1924, defendant signed an order to plaintiff to ship by express F. O. B. New York as soon as possible the described advertising material. By the language of the order, defendant agreed to pay the price on stipulated terms. The order was apparently given to an agent, and by him forwarded to plaintiff in New York. On June 14, 1924, the plaintiff received the order, and referred it to the factory to be filled. Plaintiff paid the agent’s commission and' incurred other expense, but gave no notice to defendant of acceptance. On June 16,1924, defendant wired cancellation, and on June 19, 1924, wrote a letter of cancellation. On June 20, 1924, plaintiff wrote a letter acknowledging receipt of the telegram and objecting to the cancellation. Some point is made over the use of *787 the word “contract” in the telegram, which says, “Cancel our contract,” and in the letter of June 19th, which asks, cancellation of “our order,” states that defendant does not wish to contract, and asks plaintiff “to cancel our contract with you.” There was, however, on the facts related, no contract consummated, because there was no communication of acceptance, nor' were the goods delivered before defendant by the telegram had withdrawn the offer.

McCormick Harv. Mach. Co. v. Richardson, 89 Iowa 525 ;

Durkee v. Schultz, 122 Iowa 410 ;

Younglove v. Hoherg, 195 Iowa 281 . The use of the word “contract” does not vary the legal effect of the transaction. Furthermore, plaintiff alleges delivery, and seeks to recover the price of the goods. The goods were not delivered. No case for damages, either on pleading or proof, is made.

The judgment is — -Affirmed.

De Graff, C. J., and Evans and Albert, JJ., concur.