{ "id": 5441106, "name": "Sam Sinaiko et al., trading as Sinaiko Brothers, Appellees, v. Illinois Smelting & Refining Company, Appellant", "name_abbreviation": "Sinaiko v. Illinois Smelting & Refining Co.", "decision_date": "1919-10-15", "docket_number": "Gen. No. 24,552", "first_page": "108", "last_page": "112", "citations": [ { "type": "official", "cite": "215 Ill. App. 108" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "141 Ill. 231", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5459224 ], "opinion_index": 0, "case_paths": [ "/ill/141/0231-01" ] }, { "cite": "111 Ill. 421", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 828330 ], "opinion_index": 0, "case_paths": [ "/ill/111/0421-01" ] } ], "analysis": { "cardinality": 452, "char_count": 8342, "ocr_confidence": 0.524, "pagerank": { "raw": 4.7492960360752035e-08, "percentile": 0.29810888588485274 }, "sha256": "55a0a8e2ebdf83fa1d1a8e5fe9af302b4aa44eb8fc867aa176de384361be7443", "simhash": "1:c7eb86313f08ed88", "word_count": 1449 }, "last_updated": "2023-07-14T17:59:29.997324+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Sam Sinaiko et al., trading as Sinaiko Brothers, Appellees, v. Illinois Smelting & Refining Company, Appellant." ], "opinions": [ { "text": "Mr. Justice Taylor\ndelivered the opinion of the court.\nClaiming that the defendant bought certain merchandise which it refused to pay for, and that as a result it was sold at a loss, the plaintiffs brought suit for the difference, and certain extra charges, and ohtained judgment against the defendant in the sum of $814.26. This appeal is taken therefrom.\nOn December 5, 1916, Sam Sinaiko, at Madison, Wisconsin, called up one Weill, president of the defendant company, and told him that the plaintiffs desired to sell some zinc slabs or \u201cspelter.\u201d Weill answered, according to his own testimony, \u201cWell, if you can get the spelter at once, I will give you 12 cents a pound.\u201d He further testified that Sinaiko responded: \u201cAll right,- we are going to ship it.\u201d There was some further talk over the telephone, in the course of which Weill said: \u201cI will affirm that tonight.\u201d On the same day, December 5,1916, a letter was sent by the defendant company to the plaintiffs which is as follows:\n\u201cIn regard to the conversation we had with you this morning, we beg to confirm purchase from you of ten to fifteen tons of slab zinc such as we had from you before at 12 cents ($240 net ton) and shimmings at $45 net ton, both delivered Chicago net cash on receipt of material.\n\u201cKindly let us have prompt shipment via St. Paul or C. & N. W. sending invoice and B/L to this office, and oblige.\u201d\nOn December 6, 1916, the plaintiffs wrote the defendant as follows:\n\u201cThis is to acknowledge receipt of your check for $489.20. P. S. Our Mr. Sam Sinaiko is out of the city today. Will answer yours in regard to the slab zinc as soon as he returns.\u201d\nOn the 10th or 11th of December, 1916, it having taken 2 or 3 days to get an empty car and several days to load it, the plaintiffs shipped the material to the defendant. They also shipped along with the spelter some zinc shimmings and copper, apparently on the theory that the defendant company might purchase the extra shipment, that is, in addition to the spelter. On December 12, 1916, the defendant received a letter containing the invoice and bill of lading. On Decernher 15, 1916, the defendant wrote the plaintiffs as follows:\n\u201cWe are in receipt of yonr papers on the 12th inst., and see that you have included in your shipment 19,842# of zinc slabs. We do not find that we ever purchased this material from you and if you will refer to your letter of the 6th you will find that you are in error in making shipment of the slabs. When this shipment arrives we will unload this material and you can dispose of the slab zinc to whom you please.\u201d\nAnd on December 23, 1916, the following letter:\n\u201cOn the 5th we wrote you about this dross and on the 6th your clerk acknowledged receipt of our check for $489.00 and he says, \u2018our Mr. Sinaiko is out of the city today. Will answer you in regard to the zinc as soon as he returns.\u2019\n\u201cOn the 11th of the month without further notice we received your bill of lading. We could have sold that slab zinc dross but now with spelter at nine cents a lb. there is no chance of doing anything.\n\u201cWith your permission we will take same out of the car and keep same for you without charge. We are unloading the skimmings today and if this is not satisfactory you can telegraph us and we will leave same in the car or we will accept same at eight cents a lb,\u201d\nSubsequently, on February 2, 1917, the plaintiffs wrote to the defendant that the spelter, which, meanwhile, the defendant had returned to Chicago, would be sold at public auction. Accordingly on February 8, 1917, at 3:00 p. m. it was sold for $1,635.89. The charges for freight were $34.67 and for demurrage $36, making in all $1,706.56. The loss was the difference between 12 cents and 8% cents a pound on 19,829 pounds, together with the loss of demurrage and freight, making in all $814.26, which was the amount of the judgment entered.\nIt is the theory of the defendant that the telephone conversation did not constitute a contract and that the plaintiffs\u2019 letter of December 6, 1916, was a rejection of the alleged offer in the defendant\u2019s letter of December 5, 1916. We are unable to agree with those contentions. The defendant\u2019s letter of December 5, 1916, which contains the words: \u201cIn regard to the conversation we had with you this morning, we beg to confirm purchase from you of,\u201d etc., constitutes an express admission by the defendant that a contract of purchase and sale had already been made by telephone. When, over the telephone, Sinaiko said: \u201cI want to sell my spelter now,\u201d and Weill, knowing, as he did at that time, that the plaintiffs had the spelter on hand, said: \u201cWell, if you can get the spelter at once, I will give you 12 cents a pound,\u201d to which Sinaiko responded: \u201cAll right, we are going to ship it,\u201d there was then a completed contract of purchase and sale. The evidence that Weill said: \u201cI will affirm that tonight,\u201d and then wrote on the same day: \u201cIn regard to the conversation we had with you this morning, we beg to confirm purchase from you,\u201d etc., conclusively demonstrates that the minds of both parties had already met and that the contract was made. The fact that subsequent to the time of the telephone conversation, under date of December 6, 1916, the plaintiffs wrote to the defendant, acknowledging receipt of a check for certain other merchandise, and added a postscript: \u201cOur Mr. Sam Sinaiko is out of the city today. Will answer yours in regard to the slab zinc as soon as he returns,\u201d cannot be considered as legally affecting the contract which was already made. There is some testimony on behalf of the plaintiffs that at the time the letter containing the postscript was written, the letter of the defendant of December 5 had not been received. That, however, we consider entirely immaterial. We see no escape from the conclusion that the contract was made over the telephone. But, even if written confirmation were necessary, the mailing of the letter of December 5 made the contract complete. The mailing of a letter of acceptance constitutes, ipso facto, acceptance (Haas v. Myers, 111 Ill. 421; Chytraus v. Smith, 141 Ill. 231), and \u201cacceptance concludes the contract\u201d; and, subsequently, revocation, ex parte, becomes impossible. Anson, \"Law of Contract (2nd Am. Ed.) p. 37.\nThe contention that it was error to permit the witness Felscher to testify in rebuttal, after a rule had been' entered excluding the witnesses, is not tenable, as the testimony which she gave, in the view we take of the evidence, was immaterial.\nLikewise, the contention in regara to certain instructions we consider as untenable, being of the opinion that the trial judge would have been justified, at the close of all the evidence, in directing the jury to bring in a verdict for the plaintiffs.\nFinding no error in the record the judgment is affirmed.\nAffirmed.", "type": "majority", "author": "Mr. Justice Taylor" } ], "attorneys": [ "Cunningham & Oswald, for appellant.", "Levinson & Hoeeman, for appellees; L. Loewenstein, of counsel." ], "corrections": "", "head_matter": "Sam Sinaiko et al., trading as Sinaiko Brothers, Appellees, v. Illinois Smelting & Refining Company, Appellant.\nGen. No. 24,552.\n1. Contracts, \u00a7 39*\u2014when telephone conversation constitutes contract. An offer over the telephone to sell zinc slabs or \u201cspelter\u201d and an answer stating that if the seller could get the spelter at once the purchaser would give the seller 12 cents a pound, followed by the statement that \u201cI will affirm that tonight,\u201d constituted a contract, and if written confirmation had been necessary the mailing of a subsequent letter would have made the contract complete.\n2. Contracts, \u00a7 261*\u2014when ex parte revocation impossible. The mailing of a letter accepting an offer constitutes ipso facto acceptance, and acceptance concludes the contract, and subsequent revocation, ex parte, becomes impossible.\n3. Appeal and error, \u00a7 1506 \u2014when permitting witness to testify after violating rule for exclusion of witnesses will be harmless. Error in permitting a witness to testify in rebuttal after violating a rule for the exclusion of witnesses was immaterial where the evidence otherwise supported plaintiffs\u2019 case.\nAppeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.\nAffirmed.\nOpinion filed October 15, 1919.\nCunningham & Oswald, for appellant.\nLevinson & Hoeeman, for appellees; L. Loewenstein, of counsel.\nSee Illinois Notes Pigres* Yols. XI to XV end Cumulative Quarterly, same topic and section numbe*." }, "file_name": "0108-01", "first_page_order": 134, "last_page_order": 138 }