MacMILLAN OIL COMPANY, Inc., Appellant, v. CITIES SERVICE OIL COMPANY, Appellee, 403 F.2d 715

PER CURIAM. Plaintiff-appellant, MacMillan Oil Company, brings this appeal from a judgment in favor of defendant-appellee, Cities Service Oil Company, wherein it was held that there was no contract between the parties for the delivery of 4,000,000 gallons of propane gas. Plaintiff-appellant has its principal place of business in Iowa. Defendant-appellee has its principal place of business in Oklahoma. Alleging breach of contract, damages in the amount of $62,868.19 were demanded. The case was tried to the court without a jury. The facts are not in dispute.

On April 15, 1965, appellant sent a telegram to the appellee and others requesting quotations on propane gas for summer use (2,000,000 gallons) and winter use (4,000,000 gallons). The parties had not in the past done business with each other. On April 20, 1965, appellee’s representative responded in part, “We wish to quote on the 4,000,000 additional gallons for winter use on the basis of .0482 per gallon F.O.B.

Des Moines.” On April 26, 1965, appellant’s president responded in part that, “We will accept your quotation for the 4,000,000 gallons for winter use.” Appellant’s contention is that these communications constituted a contract. On May 13,1965, appellee’s representative called on appellant’s president to complete the necessary contract forms. During the meeting it became evident that there was a misunderstanding regarding the meaning of the term “F.O.B. Des Moines” in appellee’s letter of April 20, 1965.

Appellant believed that this term meant F.O.B. its plant located just outside the city limits of Des Moines, Iowa, whereas appellee believed that the term meant F.O.B. the Northern Propane Pipe Line Terminal in Des Moines. No agreement was arrived at to settle the misunderstanding, although new quotations for the purchase of the 4,000,000 gallons of propane were submitted by appellee and held open until June 30, 1965. The trial court, the Honorable Roy L.

Stephenson, Chief Judge, specifically found that there was no meeting of the minds and no mutual assent to the terms of a contract between the parties, and, in a carefully considered opinion published in 277 F.Supp. 26, ordered judgment in favor of the appellee. We are in full accord with Judge Stephenson’s opinion and on the basis thereof, this case is affirmed.