American Oak Extract Co. v. Ryan , 104 Ala. 267 ( 1893 )

HARALSON, J. —

1. There ' was much pleading in this case, and to go through it all, to vindicate the rulings of the court thereon, would be tedious and unnecessary. It is sufficient to say, we find no errors of which the appellant can complain.

2. Let the 'following principles governing this case be first stated : ‘ ‘The doing of a thing pursuant to an offer may be both an acceptance and performance. If one makes an offer to another, or to all persons in general, and does not withdraw it, while the other person in the former case, or any one in the latter, goes forward and does the thing, such performance carries with it an acceptance of the offer; and the person who made it must' pay or do what he promises.” — -Bishop on Contracts, §§ 329, 330.

3. “In unilateral contracts, it is often, if not generally the case, that acceptance of the offer is only to be inferred from the performance of the consideration. If this is performed in accordance with the terms of the offer, a contract is thereby formed without notifying the offerer of the intention to perform, or of the completion of, the performance.” — 1 Parsons on Contracts, 492, note 1, and authorities. So too, it has been held, that if one offers to another to do something, if that other will do something else, and the party to whom such offer is made acts upon it, either to the advantage of the offerer or to his own disadvantage, such action makes the contract complete, and notice of the acceptance of the offer before is unnecessary. — Bank v. Walkins, 154 Mass. 387; 1 Parsons on Contracts, 493 ; 3 Amer. & Eng. Encyc. of Law, 847, and authorities cited.

4. Where a contract does not specify a particular time for its performance, the presumption is, that the parties intended performance within reasonable time. And this is sometimes a question of fact, and at others, one of law. When it depends on facts extrinsic of the contract, which are matters of dispute, it is a question of fact; but, when it depends upon a construction of a contract in writing, or upon undisputed, extrinsic facts, it is matter of law. — Cotton v. Cotton, 75 Ala. 346 ; Howard v. E. T.,V.& Ga. R. R. Co., 91 Ala. 269.

5. The evidence for the plaintiff tended to establish the allegations of his complaint, and that of defendant to establish its pleas. If defendant proposed, and the plaintiff performed, as is averred, and that, within a reasonable time, the offer and performance constituted a binding executed contract.

Making application of the foregoing principle, we hold that charge No. 1, given at the request of the plaintiff, is free from error. It proceeds upon the hypothesis, that if the plaintiff complied with the contract, if one was made, whatever it may have been, and the defendant broke it, by failing to furnish the barge, and the wood was burned without fault of plaintiff, that plaintiff was entitled to recover, which is a correct statement of the law.

6. In charge numbered 2 the court erred in withdrawing from the jury the consideration of the disputed fact of the stage of the water in the river, at the time of plaintiff’s alleged performance of the contract — if they should believe that one was entered into, and this was a part of it — and whether or not it had reasonable time, after notice of the delivery of the wood, to send a barge for and receive it, before it was destroyed.

7. Charge 3 was erroneous. _ There was evidence on the part of the defendant, which tended to show, that it was a part of the understanding between the parties — if as a matter of fact there was a contract between them— that the river was to be in such a condition as to permit a barge to be landed for the wood. The witness Lewis testified, that in his conversation with Russell — on which the plaintiff counts to establish his contract, but which the defendant denies did establish one — he told him, “that the time within which a barge could be furnished would depend upon circumstances ;’’ that he further said to him, “that defendant would pay $2.50 per cord, when placed on the bank of the river, where it could be reached by a barge, and that [when] the wood should be so placed and the defendant notified, it would place a barge upon which the wood was to be loaded, as soon as circumstances would permit.” If this was the correct version of the understanding, the stage of the water in the river necessarily entered into the consideration of the time when the barge was to be furnished.

There was no error in refusing the two charges requested by defendant.

Reversed and remanded,