Winder Manufacturing Co. v. Pendleton Co. , 27 Ga. App. 476 ( 1921 )

Hill, J.

(After stating the foregoing facts.) The evidence was not in conflict, and under its only reasonable construction a nonsuit was proper. When the plaintiff wired its acceptance of the offer.which had been telegraphed to it by its salesman, in which telegram of acceptance it changed the time for delivery of the goods to immediate delivery, instead of the first of September following, this was such a material variance between the order and the acceptance as amounted in law to a rejection of the order and a counter-offer on the part- of the. plaintiff as to the time of delivery. The defendant had the right so to regard it, and any attempt to revive this order by the plaintiff could not have been successful without the defendant’s consent, which was never given. On the contrary, the defendant’s construction of the plaintiff’s telegram as being a rejection of its original order was distinctly stated by the defendant in its letter to the plaintiff on the subject. The entire correspondence by letters and telegrams, introduced in evidence, shows that there was no contract between the parties. “ An attempted acceptance which seeks to modify one or more terms of the offer is of no legal effect as an acceptance. It is really a rejection of the offer, and a counter-proposition in lieu of the original offer, and must be accepted by the party making the original offer, in order to constitute an agreement.” 1 Page on Contracts (1st ed.), 75, § 46. “ An offer, when once rejected, .loses, its legal force and cannot be accepted thereafter so as to create a binding agreement unless it is renewed after the rejection by the original offerer. No revocation of the offer is, therefore, necessary to prevent its subsequent acceptance after it has once been rejected.” Id. 66, § 37. “A proposal to accept, or an acceptance, upon terms varying from those offered, is a rejection of the offer, and puts an end to the negotiation, unless the party who made the original offer renews it, or assent to the modification suggested.” Minneapolis & St. Louis Ry. Co. v. Columbus Rolling Mill Co., 119 U. S. 149, 151 (7 Sup. Ct. 168, 169, 30 Law ed. 376-377). Here the facts show a proposition by the defendant, and an acceptance upon terms varying materially from this offer. This amounted to a rejection of the offer; and the negotiation was at an end, because the original party, who made-the offer, made no attempt or effort to renew it, and did not assent to any modification suggested nor any attempt to renew the acceptance of the offer made to it by the plaintiff. See also Monk v. McDaniel, 116 Ga. 108; 113 (42 S. E. 360); Civil Code (1910), § 4230.

Judgment affirmed.

Jenkins, P. J., and Stephens J., concur.