Perkins v. Maurepas Milling Co. , 88 Miss. 804 ( 1906 )

Truly, J.,

delivered the opinion of the court.

The demurrer to the declaration was well taken. While there are several alleged breaches of the contract attempted to be set out in the, declaration, still the entire statement of damages said to have been suffered, the real cause of action on which the suit is based, is dejiendent solely upon the alleged breach or predicated of the alleged wrongful delay in making shipment and delivery of the engine ordered. But the declaration fails to declare this breach with sufficient clearness and precision. It does, it is true, allege that the contract was broken by a failure to ship and deliver the engine within the time stipulated, and that certain damages were caused thereby. But the facts stated do not sustain this conclusion. The written order, the initial step in this transaction, expressly recites that shipment of the engine is to be made “as soon as possible, about thirty days,” and further stipulates that “this contract order is taken subject to the approval” of the appellant. This order in its entirety is expressly made part of the declaration and is to be considered in connection therewith. The order was preliminary merely. The consummation of the contract was dependent on an affirmative ratification by the appellant. Tet the declaration fails to aver any approval or acceptance of the order by the appellant when the same in due course of business was transmitted to him by his salesman and representative. This was absolutely indispensable to the proper and legally sufficient statement of a cause of action. No right of any kind could possibly have accrued to the appellee under the order here under review until it had reached the appellant and had received his approval. It required the acceptance of the appellant to vitalize the order into a definite and enforceable contract. The order itself shows no such acceptance or approval and the declaration fails to aver its existence.

The declaration is faulty in still another respect. There was no definite date of shipment fixed by the order given by the appellee. The statement that the engine is to be “shipped as soon as possible, about thirty days,” must be interpreted in connection with the other recitation that the order was taken “subject to the approval of” the appellant. The recital in the order as to the date of shipment was not only not the fixing of a day certain by which shipment must be made, but it, like the entire order, was of no legal effect until it had met with the approval of the appellant. There could naturally be no binding agreement as to a date of shipment, when the decision of whether there should be a shipment at all at any time depended entirely upon the judgment'of another person not then consulted, and upon the happening of another event — i. e., that the order should meet with the approval of the appellant — and the declaration fails to show that the contingency, upon the happening of which shipment would be made, ever arose. The contention that the provision that shipment was to be made “as soon as possible, about thirty days,” fixed a definite and determined day of shipment, thirty days from date of order, does violence to the other recitals of the order, and is at variance with the manifest intent of the parties as gathered from the context of the entire instrument. It might happen that the order in due course of business might not reach the appellant until after the expiration of thirty days from its date, when a compliance with this provision (according to the construction of appellee) would be impossible, or that upon its receipt the order would be absolutely rejected, so that no shipment would ever be required. If to this it be said that the phrase means “thirty days from date of acceptance of order,” the inescapable reply is that the declaration fails to aver such approval or acceptance.

The declaration is defective in still another vital particular. The order expressly provides that even after it has met with the approval of the appellant, and thereby become a legal and binding contract, still the shipment is, nevertheless, “subject to all strikes, accidents, delays unavoidable or beyond control” of the appellant. And yet the declaration fails to negative the existence of these recognized causes of excusable delay. It might well be that the appellant could concede the existence of a legal contract; could concede that under its terms shipment was to be made at a stated time, and still the declaration would state no case, because it does not charge that the delay was caused by the negligence or wrongdoing of the appellant, or that it was not caused by one of the excepted reasons. Conceding the contract, the agreement to ship at a certain date, and a failure to so ship, still the appellant would not be liable if such delay was caused by “strikes, accidents, delays unavoidable or beyond the control” of the appellant. It is no answer to this to say that proof upon the trial might or might not disclose that none of these causes of excuse in fact existed. The demurrer challenges the sufficiency of the declaration construed in connection with the order expressly made a part thereof. Tested by this rule the declaration is faulty.

The cause is reversed, demurrer sustained, and cause remanded, with leave to the appellee to amend within thirty days from filing of mandate iu court helow.