# Allis-Chalmers Manufacturing Co. v. Curtis Electrical Co. > Texas Supreme Court · February 10, 1954 · 153 Tex. 118 URL: https://www.frixlaw.com/law-library/cases/9638772 ## Case - **Full name:** Allis-Chalmers Manufacturing Company v. Curtis Electrical Company Et Al - **Court:** Texas Supreme Court - **Decided:** February 10, 1954 - **Citations:** 153 Tex. 118; 264 S.W.2d 700; 1954 Tex. LEXIS 501 - **Precedential status:** Published - **Opinion:** Dissent by Griffin - **Judges:** Wilson, Griffin, Smith - **Cited by:** 15 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9638772 ## How later opinions describe it (automated extraction) - holding that Texas A M is an agency of the State of Texas ## Opinion text Mr. Justice Griffin, joined by Justice Calvert, dissenting. I am in agreement with the majority opinion insofar as it holds that the building contract and bond fall within the provisions of Article 5160, Vernon’s Annotated Civil Statutes; and the petitioner, not having compiled with the requirement of Article 5160, cannot recover. I cannot agree that C. E. Curtis is individually liable to petitioner. For him to be liable there must have been a contract — a meeting of the minds — between petitioner and Curtis that Curtis should be liable. Curtis’ liability is predicated solely upon an exchange of letters between the parties. *122 On September 22, 1939, petitioner wrote a letter to Curtis Electrical Company, hereafter referred to as the Company, requesting payment of a stated balance claimed to be due. On September 25, 1939, Mr. Curtis, on behalf of the Company, replied by letter in which he disputed the amount of the claimed balance due, and made the following offer: “We would also like to know if you will accept our trade acceptance for 30 days for this balance payable at The Austin National Bank at Austin, Texas, and if so kindly make out one due October 31, 1939 and mail to us for our signature. * * * Although our firm is a corporation the writer (Curtis) will personally guarantee and individually sign this trade acceptance if necessary to do so.” (Emphasis added.) Also in this letter the Company claimed the true amount due was only $5,990.43 instead of the claimed $6,352.72, and itemized the credits to which the Company was entitled. On October 4, 1939, petitioner replied to the Company’s letter of September 25th, and petitioner again contends that the correct statement of the account due by Company is the sum of $6,352.72, as shown in their letter of September 22nd, and further requested that a check be sent for $1,352.72 and a trade acceptance for $5,000.00, due on October 31, 1939 be executed. This letter also said, “We appreciate your personal signature and guaranty in this matter, * * However, the trade acceptance enclosed for execution was in the sum of $6,000.00 instead of $5,000.00. We do not believe that it can, or will be, contended that there has been any meeting of the minds on the same contract thus far. There has been no acceptance of the offer made in the letter of the Company dated September 25, 1939. The minds had not met on the amount due, nor had a trade acceptance for $5,000.00 been tendered for execution. On October 9, 1939, the Company wrote petitioner disputing the amount of the balance claimed by petitioner to be due, and in this letter the Company claims only an unpaid balance of $5,886.53 as against the $5,990.43 claimed in its letter of September 25th. This letter also changes the offer as follows: “We are also returning your trade acceptance as you will note that it is made out for $6,000.00 whereas your letter states $5,000.00 is the amount, which is no doubt an error. We suggest you remake the trade acceptance for 60 days being due Dec. 1, 1939, for $5,000-00 and we will send you our check for $886.53 immediately * * Petitioner did not reply to this letter until November 3, 1939, when it wrote the Company stating that they had been successful in getting through a credit memorandum on the balance, and stating: “This credit reduces the balance of your account to $5,886.53 and as suggested in ycur letter, we attach new trade acceptance for $5,000.00 dated October 30 due November 30 which we suggest *123 you now execute and return to us along with your check for $886.53.” The trade acceptance was never executed, nor the check ever sent. These letters (which was all the evidence on the making of a contract) clearly show the minds of the parties did not meet on the identical terms of the contract. Petitioner in its letter of November 3rd, did not unconditionally accept the terms of the offer from the Company as set out in its letter of October 9, 1939. That letter called for a 60-day trade acceptance due December 1, 1939, whereas petitioner tendered a 30-day trade acceptance due on November 30, 1939. As I understand the law of contracts, it has long been settled that before a contract can be made between parties there must be a meeting of the minds of the parties upon identical terms of the contract. The acceptance must be unqualified and unconditional, and in the exact terms of the offer. 10 Texas Jur. 42, Contracts, Sec. 23; 12 Am. Jur. 543 , Contracts, Sec. 53; 17 C.J.S. p. 378, Contracts, Sec. 42. One of the most recent statements of this rule is found in the case of Garrett v. International Milling Co., Texas Civ. App., 223 S.W. 2d 67, 72 (1-6), no writ history, wherein it is said: “In Summers v. Mills et al, 21 Texas 77 , the Supreme Court said: ‘It does not matter that the difference of terms between the parties may not seem to be very material. If a diversity exists, that fact is enough. To make a contract there must be a mutual assent. “The assent must comprehend the whole of the proposition ; it must be exactly equal to its extent and provisions, and it must not qualify them by any new matter.” If the answer, “either in words or effect, departs from the proposition, or varies the terms of the offer, or substitutes for the contract tendered one more satisfactory to the respondent,” there is no assent and no contract. Pars. Con. 400. “If a proposition be accompanied with certain conditions or limitations, the acceptance must correspond to it exactly, for if any alteration be suggested, or any exception be made to its exact terms, the provisional acceptance becomes merely a new proposition, which also requires an acceptance.” ’ “The following additional authorities support the above propositions: Browne Grain Co. v. Walker, Texas Civ. App., 206 S.W. 859 ; Whitaker v. Zeihme et al, Texas Civ. App., 61 S.W. 499 ; Womack v. Dalton Adding Machine Sales Co., Texas Civ. App., 285 S.W. 680 ; Great West Grain & Seed Co. v. Ray, Texas Civ. App., 204 S.W. 2d 26 , writ refused, no reversible error; Moore Bros. v. Kirkpatrick, Texas Civ. App., 172 S.W. 2d 135 .” 1st. col., p. 72, 2nd par. *124 Many other authorities holding the same could be cited. This is an elemental, fundamental and universal rule of contracts, and so far as I have been able to determine my research I have found no Texas case which holds to the contrary. The majority opinion says that the difference of one day is not material, and that it was a substantial compliance with the offer. The answer to such an argument is that Curtis never at any time offered to make a trade acceptance due on November 30, 1939, so his mind could not possibly have been in agreement — or have met with the mind of petitioner — on such date. It is a well known fact in the business world that by far a greater number of bills are payable on the first of a month, rather than on any other day. Curtis likely had a good reason for wanting this trade acceptance due on the first of a month, rather than the last day of a month. Whatever his reason, the offer he made was to pay on December 1, 1939, and that offer was never unequivocally, unconditionally and exactly accepted. Therefore, I say there was- never a completed contract whereby Curtis personally became bound to pay this trade acceptance. Unless he agreed to pay it, he is not bound to pay it. I have shown there never was any meeting of the minds on this trade acceptance; therefore, there can be no contract; therefore no individual liability by Curtis. I cannot agree to change such a well-established and wholesome rule of contracts as the one long followed which says the parties themselves must make their own contracts through the meeting of the minds. Unless their minds have met on the terms, I do not believe courts should make contracts for parties who have not made them for themselves. I would hold that Curtis is not individually liable. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9638772. Public record. Not legal advice.