Rothstein

On Petition for Rehearing.

My concurrence in the conclusion reached in this case and in denying the petition for rehearing should be expressed as follows:

The parties are agreed that the asparagus shipments, from the Golden State Company of the crop referred to in the telegram from appellee, include shipments of both asparagus tied in bunches and untied and loose in crates. Appellee’s telegraphic offer to appellants reads:

The guaranty to be given by appellants is a guaranty that “all drafts against shipments will be paid.” The guaranteed “shipments” obviously were to be “all asparagus shipped”; that is, both bunched and loose. There is no ambiguity in the phrase “all asparagus.” It would vary and not explain the proposal to prove the sender meant less than “all.”

Appellants’ purported telegraphic acceptance does not accept this offer. In effect, it makes a new proposal, namely, to guarantee only the shipments of “bunch” asparagus. It did not cover the loose asparagus of the appellee’s offer. It is as follows :

Since the suit is based solely upon the claim that this exchange of telegrams constitute a contract, and since they do not constitute an offer and acceptance within…

This is an appeal from a judgment entered on a jury verdict in the sum of $7,-504.02 in favor of the plaintiff in an action for breach of a written contract.

After oral negotiations between Mr. M. H. Rothstein, one of the defendant co-partners,' and George N. Edwards, receiver for the Golden State Asparagus Company, for the purchase of a crop of asparagus, Edwards telegraphed Rothstein, who had gone from California to Seattle, Wash., as follows:

Rothstein replied by telegraph as follows :

Later Edwards and Rothstein met in the law offices of Edwards’ attorney and discussed plans and terms of a guarantee and the attorney presented a draft of a proposed written contract. Wide differences developed and the meeting broke up without accomplishment. No guarantee was ever given and Edwards sold the crop of asparagus for less than the price mentioned in the telegram. He brought suit for the difference upon the theory that the two telegrams constitute a written contract, and was awarded the judgment mentioned.

The judgment cannot stand for the reason that the telegrams record no complete agreement between the parties. Roth-stein’s answering telegram is inconsistent with the theory that…