A. & J. Trounstine & Co. v. Sellers , 35 Kan. 447 ( 1886 )

The opinion of the court was delivered by

Johnston, J.:

The right of possession to the clothing in controversy depends upon whether the proposition made to the plaintiffs by Moore & Weaver on November 16, 1884, was accepted and became a contract before the execution of the mortgages by Moore & Weaver to their creditors on the 15th day of December, 1884. It appears that the plaintiffs, who were engaged in the wholesale clothing business at Cincinnati, Ohio, sold on credit a stock of clothing through one of their agents, to Moore & Weaver, at Ottawa, Kansas. The goods were sold and shipped in the early part of September, 1884, upon the terms that Moore & Weaver were to have a discount of 6 per cent, off the prices named not later than ten days after January 1, 1885, and credit was given them until the expiration of that time for a discount. On Noveipber 10, 1884, Moore & Weaver wrote to the plaintiffs, claiming that if they did not choose to discount the bill within ten days after January 1, 1885, they were entitled to a credit of four months from that time. The plaintiffs answered this letter on the 14th of November, 1884, insisting that the credit did not extend beyond ten days after January 1,1885. Moore & Weaver again wrote to the plaintiffs, on November 16,1884, insisting on the additional credit of four months from January 1, and in closing their letter, stated: “If you think we are misrepresenting the facts in the case, we will return the goods which we have ’on hand, and pay for what we have sold out of them. Hoping to hear from you soon, we remain/’ etc. This letter was received by the usual course of mail, but was never answered. It seems that soon after the plaintiffs received the letter of November 16, Mr. Harper, one of their firm, started out from Cincinnati on a business trip, with the intention of attending to some important business matters of the firm in Indiana and Illinois, which demanded immediate attention, and with a view of coming on to Ottawa as soon as those matters were disposed of. He reached Ottawa on the evening of December 16,1884, one month after the proposition was made, when he demanded the possession of the goods from the defendant Sellers, who was in charge of them under the mortgages executed the preceding day.

1'tooontraotn; , acceptance. It is insisted by the plaintiffs that the court erred in not holding the conduct of the plaintiffs in starting from Cincinnati as an acceptance of the proposal made by Moore & Weaver, and as a completion of the contract, which vested the title and right of possession of the goods in the plaintiffs. In our opinion the conduct of the plaintiffs did not indicate a purpose to accept the proposal made by Moore & Weaver, and cannot be regarded as an acceptance. Although the proposition did not within itself limit the time or manner of acceptance, it cannot be regarded as a perpetual one, forever open to be accepted or rejected at the will of the plaintiffs. In Maetier v. Frith, 6 Wend. 103, the rule laid down with respect to a proposal made ] by letter is, that the offer continues until the letter containing i it is received “and the party has had a fair opportunity to answer it.” It has also been held-that “ a letter written would not be au acceptance so long as it remained in the possession or under the control of the writer. An offer then made through a letter, is not continued beyond the time that the party has a fair opportunity, to answer it.” (Averill v. Hedge, 12 Conn. 423.) Upon receipt of Moore & Weaver’s . . x letter, the plaintiffs were bound “to accept in a reasonable time and give notice thereof, or the defendant was no longer bound by the offer.” ( Chicago & G. E. Rld. Co. v. Dane, 43 N. Y. 240. See also Martin v. Black’s Executors, 21 Ala. 721; Admr’s v. Mocksley, 2 Metc. [Ky.] 309; Minn. Oil Co. v. Collier Lead Co., 4 Dill. 43; Judd & Co. v. Day Bros., 50 Iowa, 247; Taylor v. Rennie, 35 Barb. 272; Benjamin on Sales, 61, note 7.)

The offer which was made was the result of correspondence through the mails, and as the dates of the letters indicate, they had been promptly answered and responded to by both the parties. Besides, the letter containing the proposal by its terms enjoined an early reply. It closes with the words, “ Hoping to hear from you soon,” etc. While the mode of acceptance was not indicated in the letter making the offer, the nature of the negotiations as well as the manner in which they were carried on, suggested not ■ only the desire and necessity for an early reply, but also that the parties making the offer would expect an answer through and by the usual course of the mails. It has been said that —

“ Where an individual makes an offer by post stipulating j for, or by the nature of the business having the right- to ex- \ pect, an answer by return post, the offer can only endure for • a limited time, and the making of it is accompanied by the implied stipulation that the answer will be sent by return post. If that stipulation is not satisfied, the person making the offer is released from it.” (Maclay v. Harvey, 90 Ill. 525; Dunlop v. Higgins, 1 H. L. Cas. 387.)

2'main011 prompt reply. 3. contract not consummated. 4. No acceptance. If the plaintiffs intended to accept1 the proposal, it was their duty to have signified their acceptance, either through the mails or by 'some equally expeditious means. The plaintiffs say that they determined to accept L . . . . . the proposition as soon as the offer was received, and that Mr. Harper’s act in starting to Ottawa was an overt act amounting to an acceptance. Every overt act caused by a determination to accept a proposition does not constitute an acceptance. If it was the intention of the plaintiffs to accept the offer, they could and most likely would have written Moore & Weaver a letter, which was the usual mode of communication between the parties, and which is the usual mode of accepting an offer made by letter. Instead of sending a letter or telegram announcing a determination to accept, one of them started on a business trip through the country, intending finally to come to Kansas and take the goods, which trip consumed almost thirty days’ time, during which time they were at liberty to change their purpose and reject the proposition. The mere determination to accept an offer does not constitute an acceptance which is binding on the parties. “ The assent must either be communicated to the other party, or some act must have been done which the other party has expressly or impliedly offered to. treat as a communication.” (Benjamin on Sales, 54.) Where parties are distant, and ^he contract is to be made by correspondence^ Writing of a letter or telegram containing a notice of acceptance is not of itself sufficient to complete a contract. In such a case the act must involve an irrevocable element, and the letter must be placed in the mail, or the telegram deposited in the office for transmission, and thus placed beyond the power or control of the sender, before the assent becomes effectual to consummate a contract; and not then, unless the offer is still standing. (See authorities above cited.) The action of the plaintiffs in sending a member of the firm by a circuitous route to Kansas, was no more . _ ~ . , - than a mere mental assent, which, as we have seen, is insufficient. There was no act of acceptance until Harper arrived at Ottawa and demanded the goods. This was not within a reasonable time, and when the proposition was not met within a reasonable time, Moore & "Weaver were at liberty to regard their proposition as rejected, and to make other disposition of their property, which they manifestly did do.

In regard to the objections made to the findings of fact, it is enough to say that after an examination of the record, we think they conform to and are supported by the testimony.

Finding no error in- the record, the judgment of the district court will be affirmed.

All the Justices concurring.