It is the custom of many merchants, with a view doubtless of securing the best possible terms and yet to leave a loophole, whereby they can take only such an amount as they desire, to give the vendor a general idea of their requirements.

In Heisel vs. Volkman, reported in Volume 55, New York Appellate Division, page 607, a dealer wrote to a manufacturer of certain kinds of merchandise asking for “prices for supplying our requirements,” stating “we estimate our yearly requirements at from five to ten million pieces. Are confident that they will not be less than the smaller amount and reasonably certain that they will come up to or exceed the larger one,” to which the manufacturer replied, “I would be willing to make a yearly contract with you from five to ten million pieces, etc.” The purchaser did not take the minimum amount of five million pieces during the period in question and the manufacturer sued to recover the purchase price of the difference, having, of course, done what was necessary in respect to making a tender of delivery. The court held that the purchaser was obligated to take and pay for at least five million pieces, even if his requirements for the year fell substantially short of that amount and that the seller in making his price had a right to rely upon the minimum amount stated by the buyer.

Attention is called to this for the reason that the same rule would apply to a transaction in lumber and because many of the trade are in the habit of making contracts upon similar conditions and referring in elastic terms to their probable requirements.

Opinion No. 103.