Mott v. Jackson , 172 Ala. 448 ( 1911 )

SIMPSON, J.

This action is by the appellant •against the appellees, as common carriers, by water, for damages for refusal to receive freight. Demurrers Avere sustained to the complaint, as amended, the plaintiff refused'to amend, and the errors claimed are the action of the court in sustaining the demurrers to the several counts of the complaint.

The counts of the complaint (which Avill be set out by the reporter) are on the contract, and not ex delicto. — Wilkinson v. Moseley, 18 Ala. 288, 290, et seq.; Mobile Life Ins. Co. v. Randall, 74 Ala. 170, 176; McDaniel v. Johnston, 110 Ala. 526, 532, 19 South. 35; Southern Railway Co. v. Rosenberg, 129 Ala. 287, 30 South. 32; W. U. Tel. Co. v. Littleton, 169 Ala. 99, 53 South. 97.

The insistence of the appellees is that the contract set out in the several counts-of the complaint is unilateral, and does not allege any consideration for the promise or any acceptance of the offer. It is familiar contract law that where one party makes an offer, dependent upon some act of the other party, and the other-party performs the act, that is an acceptance of the offer, and constitutes a sufficient consideration to support the contract. — 6 Cyc. 429, and notes. It is true that a mere general offer by a, carrier to receive and transport goods generally would bo too indefinite, and would include nothing but its common-law liability, and under such an offer a failure to receive goods for shipment would be subject to the defenses applicable to-an action on the common-law duty, such as that the vessel was already loaded to its full capacity; but when the carrier says to the shipper, “I will receive and carry your freight .at a particular time [as on the next down trip of the boat] and at a particular place [as at Davis’ Bluff],” it cannot mean anything except that “I will have the space and facilities, when the boat reaches said landing, to receive your goods, and if you will have them there a.t that time I will receive and transport them.” It is true that, up to that time, the carrier’s-promise- was but an offer, or a proposition; but, if it had desired to protect itself against the contingency of the shipper’s not accepting the proposition, by having his goods ready for shipment, or of his receiving a boat load of freight before -reaching said point, he should have required a specific acceptance of the proposal, or inserted a proviso as to space, etc.

The appellees insist that the offer should specify whether it is to be accepted by promise or by act. While a, party making an offer has a right to specify how it shall be accepted, in order to complete the contract, yet, if he does not so specify, it is clear that anything which in law would be an acceptance, so long as the offer is left open, would be sufficient, and an acceptance by act is as effective as acceptance by words. In an early English case, it was said: “If I say to another1, 'If you will go to York, I will give you £100/ that is, in a certain sense, a unilateral contract. He has not promised to go to York. But, if he goes, it cannot be doubted that he will be entitled to receive the £100. His going to York at my request is a sufficient consideration for my promise.” — Gt. N. Ry. Co. v. Witham, 9 Law Rep. (C. C. P.) 12, 19. If the shipper had been •standing on the river bank, and the captain of the boat had said, “I will take your staves and carry them to Mobile for a reasonable compensation,” and the shipper, without saying a word, had immediately delivered the goods to the boat, or offered them to its employees, it cannot be doubted that that would have been a sufficient acceptance to close the contract. The offer, then, being still open and unrevoked, was necessarily a continuing one, and its acceptance at one time, as effectual as at another.

One of the counts also goes into particulars, and shows that special instructions were sent by the defendants to have the goods prepared and ready at the time and place, and that the plaintiff, in accordance with the instructions, had gone to considerable expense to comply therewith; but we hold that the acceptance by act of the continuing offer completed the contract. In the case of Bernstein v. Lans, 104 Mass. 214, where one man said to another in a barroom, “If you will obtain a purchaser for my place, I will give you $50,” there was no acceptance; bnt the party did afterward obtain a purchaser, with whom the promisor traded, without even knowing that the purchaser had been sent to him by the promisee. It was held that there was evidence for the jury to find a continuing offer and acceptance. This principle is supported by numerous authorities. — Train v. Gold, 5 Pick. (Mass.) 380, 384-387. In a case where a carrier agreed to transport certain classes of freight, between certain stations, a,t a certain rate, for a period of 12 months, the Supreme Court of Massachusetts held that “this agreement constituted a continuing offer, on the part of the defendant, to transport such lumber as the plaintiff should furnish, at the specified points, during the period named, and was binding on the defendant whenever, during that time, the plaintiff tendered lumber for transportation according to its terms. — Harvey v. Conn. & P. R. R., 124 Mass. 421, 422, 26 Am. Rep. 673. It is t-rne in this case the court refers to the plaintiff’s having informed the de-. fendant of certain matters “at the time that he desired to make this contract” but that was merely for the purpose of arriving at the measure of damages. It cannot be inferred from, that remark that there was a binding contract before the tender of the goods; for the •court- places its holding distinctly-on the ground that it was a continuing offer.

“A proposal, although revocable in its nature, becomes effective if accepted and acted upon before annulled by revocation.”- — Cleveland, C., C. & I. Ry. Co. v. Closser, 126 Ind. 368, 26 N. E. 165 (second column ), 9 L. R. A. 754, 22 Am. St. Rep. 593; Wellington v. Apthrop, 145 Mass. 69, 13 N. E. 10, 12; Bigelow v. Chicago, B. & N. Ry., 104 Wis. 109, 80 N. W. 95, 97, The only case which has been brought to our attention, seeming to hold a contrary view, is that of Chicago & G. E. R. R. v. Dane, 43 N. Y. 240. It must be noted, however, that in that case the contract was general, to carry freight during the months of April, May, June, July, and August, evidently contemplating that the railroad should have the benefit of carrying freights during all of those months, and the offer of the shipment was not until in August; and the court, in referring to this feature of the case, says: “Upon receipt' of the defendant’s letter, the plaintiff was bound to accept in a reasonable time and give notice thereof.” In the present case there was no question of reasonable time. The proposition was to receive the freight at a particular time and place, and the acceptance was at that time and place. However, the weight of authority sustains the principles declared in the cases above cited.

Where a second mortgagee of land proposed to the first mortgagee to pay rents in consideration of the latter’s forbearing to foreclose, it was held that his actually forbearing was a sufficient acceptance, though there was no express agreement to do so. — Marshall v. Old, 1 Colo. App. 32, 59 Pac. 217. In our own case of Baxley v. Tallassee & Montgomery R. R. Co., 128 Ala. 183, 29 South. 451, the letter upon which the right of damages was claimed was merely one from one railroad officer to another, stating that he had agreed to make a certain rate to Baxley, and Baxley to have weekly inspections and shipments. It is true that the decision states that there can be no doubt that, “had the defendant supplied the cars, and Baxley had failed to load them with ties for transportation, and refused to pay the charges stipulated for transportation, he would have violated his agreement,” and that this obligation “imparted mutuality to the contract.” So the case does not discuss the principle of a distinct proposition and the acceptance of it, by act and not by words. While it is true that some of the cases, where the carrier agreed to furnish cars, indicate that the shipper had applied for the cars, yet they do not militate against the principle above declared.

The word “agreed” is defined as “brought intu harmony; united in opinion; settled by consent,” etc. (Standard Diet.); and, where a bill averred that “the defendant agreed that his daughter was to have certain slaves,” it was held that it “is synonymous with contracted, and hence evidence that the defenda ut gave the slaves to his daughter did not support the allegation.” —1 Words & Phrases, 279; McKisick v. McKisick, Meigs, 427, 433. So, when the first and second counts alleged that the defendant “promised and agreed,” or “undertook and promised,” it must at least mean something more than a mere general offer, and shows that it was on an application for the same, especially when it refers to a special trip, at a designated place; and when, in the third count, it is further alleged that “plaintiff was notified by the servants and agents of defendants * * * to have said staves prepared and ready for loading,” it shows at least that the plain ti 'I was to accept the contract by acting, and not by written acceptance. While the pleading might have been more perspicuous, the counts were not subject to th i demurrers.

' The judgment of the court is reversed, and a judgment will be here rendered, overruling the demurrers and remanding the cause.

Reversed, rendered, and remanded.

Dowdell, C. J., and McClellan and Somerville, JJ., concur.