I agree with the dissenting opinion of Mr. Chief Justice Pratt.
There is also another reason why I think we must conclude that there was no meeting of the minds and therefore no contract. The cablegram on which respondent relies as an offer to buy from it the property in question, in my opinion, is not an offer to purchase from respondent at all, but merely an authorization by appellant or by Brown-Bevis Company to respondent to make a bid on its behalf for the purchase of these hammers from the government, but not to exceed the price therein specified. The words of the cablegram on which I base my conclusion are as follows:
"* * * Reference hammers bid maximum 24 dollars each. * * *" (Italics mine.)
The words "bid maximum" as here used, in my opinion, require the construction that
"we authorize you to present our bid to the government up to the maximum expressly specified for the hammers in question."
The only possible purpose for the use of the word "maximum" in this sentence is to indicate that the addressee of this cablegram was authorized to use its discretion in the amount of the bid, but must not bid more than the maximum figure therein specified. If the appellant intended to make an offer to purchase these goods from respondent, the word "maximum" is not only out of place and meaningless but it expresses a meaning which is contrary to such intention. It does not indicate a firm bid but a limit and is inconsistent with an offer to purchase from plaintiff. And even if respondent's evidence were correct in regards to the oral conversation, still, in my opinion, the cablegram cannot be construed to mean that appellant intended to offer to purchase from respondent the goods in question because on the face of the cablegram it shows an *Page 610 obviously different meaning. That the foregoing is the correct construction of this cablegram is also indicated by the fact that in the past the respondent had acted as the agent of the appellant in disposing of equipment manufactured by it.
I find nothing either in appellant's communications or actions which is inconsistent with its contention that the cablegram merely offered to make the respondent its agent. The fact that in its letter of confirmation appellant points out that it was not acting in its own behalf but was merely acting for Brown-Bevis Company is not an admission that it, or Brown-Bevis Company, was making a bid to purchase from respondent. In substance, its position was that it had sent the cablegram as the agent of Brown-Bevis Company. But such claim is not an admission that the cablegram was an offer to purchase from respondent. At the time this letter was sent, there was no dispute on this point. There was certainly no dispute as to the meaning of this cablegram. At that time no one had ever claimed that the cablegram was an offer to purchase from respondent and there was no occasion for appellant to point out that it was only authority for respondent to present an offer to the government. The cablegram was clear on this point and needed no explanation. However, on the face of the cablegram — it being sent by appellant — there was a definite indication that the appellant in sending the cablegram was acting in its own behalf and not for Brown-Bevis Co. and appellant took the very earliest possible occasion to prevent any misunderstanding on this point by stating that it was acting for Brown-Bevis Company.
I, therefore, think that the cablegram only constituted an authorization on the part of appellant for respondent to submit a bid in its behalf to the government.
For the foregoing reasons, I think the case should be reversed.
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