Hopkins v. Racine Malleable & Wrought Iron Co.

Contracts: Continuing offer: Consideration: Mutuality: Revocation: Damages. 1. Consideration in the form of mutuality being essential to the validity of a contract, a -wholly executory contract for mutual acts is of no binding force upon one party unless and until the other has become bound thereby. 2. Such rule is subject to modification to the extent that an execu-tory promise by one party may be considered a continuing offer of performance, which, when accepted, in whole *r in part, by the other party, becomes a contract pro tanto to the extent of the acceptance. 3. Such modification, however, is carried no further than to bind the offerer so long as he sees fit to keep the offer open. 4. A continuing offer may be revoked at any time except as to acceptance thereunder prior to the revocation. 5. After the revocation of a continuing offer, no damage accrues to the offeree for refusal to comply with subsequent acceptances.

• Appeal from a judgment of the circuit court for Racine county: E. B. Belden, Circuit Judge. The plaintiff having secured a patent upon a certain farm gate and having had some undisclosed negotiation with the defendant, a manufacturer of malleable irons, the latter on March 10, 1905, mailed to him the following writing: “Hopkins’ Gate Contract. “The Racine Malleable and Wrought Iron Company of the city of Racine, state of Wisconsin, hereby agrees with Floyd Hopkins of the town of Belvidere, county of Boone, state of Illinois, to furnish, at any time hereafter during the life of the patent, castings for the patent improved farm gate of said Hopkins, known as the Hopkins Gate, patented January 3, 1905, as follows, to wit: . . . We agree to furnish the above named castings for forty cents per set at our shops to be shipped to any point of the United States or Canada, the price aforesaid to be for cash at Racine, Wisconsin. The said company further agrees that it will furnish the above trimmings to any person or persons to whom the said Hopkins may make sale of any territory for his said Hopkins improved patent farm gate, provided the said Hopkins shall indicate by his order who such persons or purchasers are, but with the understanding that said Floyd Hopkins is not liable, or held liable for any castings so furnished to any purchaser or purchasers of territory from him.” . There was no reply, but from time to time, up to July, 1906, the plaintiff ordered castings in quantities from fifty to 150 sets, and they were supplied by the defendant, who seems to have manufactured a quantity in order to be able to furnish them as ordered. On April 30, 1906, defendant wrote plaintiff that by reason of reorganization of its business it was a question whether it could continue to make or furnish the gate castings, and that it wrote in order to give plaintiff an opportunity to find some other place to have them made; that while it still had some irons on hand, it did not care to carry on the business in the. old way by carrying stock and shipping all over the country when wanted; that it had no room for storage nor facilities for packing and shipping. Again, on October 29, 1906, the defendant wrote him that it had approximately 400 sets of castings on hand, but was unwilling to continue the' business after that stock was exhausted by carrying other stock, saying that the plaintiff would have to make arrangements to carry the stock elsewhere, and also stating: “We do not object to making your castings for you, but after the goods are made they must be shipped out of here. We cannot carry a stock. . . . Orders that are placed after the stock on hand now is exhausted will be billed at revised prices.” December 14th it wrote again: “The time is drawing near when we can no longer accept such contracts. . . . What stock we have made up, which is about 350 sets, we will close out, but we can no longer make these castings and carry them in stock for you, and have you draw them from this stock. You will have to make arrangements to carry the stock elsewhere.” On December 27, 1906, plaintiff mailed to the defendant, what is called an order, the following letter: “I wish one thousand sets of Farmer Hopkins’ Gate castings patented January 3,- 1905, manufactured and ready for delivery May 1, 1907. Will give you shipping directions later.” To which the defendant replied January 30th: “It is not possible for us to make the thousand set of Farmer Hopkins’ Gate castings at the present time” — asserting as a reason the quantity of other work. And again, on February 22r 1907, referring to an intervening conversation, the defendant reaffirmed the letter of January 30th, and said: “We are unable to make up the order for you, and as conditions are at present, we could give you .little or no encouragement for making up these goods in the future.” The conversation referred to was claimed to contain a reiteration of the statement that the 350 sets on hand would be furnished as called for. Plaintiff, on April 9, 1907, entered into a contract with another manufacturer to manufacture a thousand sets of castings for the same purpose, of slightly greater weights and size, and with some modification of structure, at a price of fifty-five cents per set, to be paid when the manufacture was complete. Up to the time.of the trial, January 13, 190S, the total ordered shipped by plaintiff from this 1,000 sets was 200 sets. Plaintiff brought suits for damages for defendant’s refusal to comply with the order of December 27, 1906, and judgment was rendered by the court, without a jury, for damages at the rate of fifteen cents per set, or $150, from which the defendant appeals.