Sutter-Van Horn Co. v. Mississippi Home Telephone Co. ( 1915 )

Smith, C. J.,,

delivered the opinion of the court.

In January, 1912, appellee gave to one of appellant’s, traveling salesmen a written order for five thousand fans, subject to appellant’s acceptance at its home office-in New Orleans. Certain advertising matter was to be printed on these fans. Upon receipt of this order by appellant it wrote appellee as follows:

“We have your order given our Mr. Man Horn for five thousand fans and one thousand small blotters.

Pans...............................$100.00'

Blotters............................ 10.00 $110.00-

“We understand you wére to send in copy for these fans at once, and-beg to advise that same has not reached us; therefore request that you have same come forward at once. ’ ’

Some days later, appellee wrote appellant, directing it. to cancel the order for the fans. This appellant declined to do, and instituted this suit in the court of justice of the-peace to recover damages which appellant is alleged to-have sustained on account of appellee’s refusal to accept, the fans. At the close of the evidence in the court below .the jury were instructed to find for appellee, and there was a verdict and judgment accordingly.

The contract here intended to be entered into was to-be formed by means of an offer by appellee and the acceptance thereof by appellant. Before such a contract •can "be formed, there must he an unconditional acceptance of the offer, and—

“not only must the acceptance he unconditional, hut it must he identical with the terras of the offer. It must not vary from the proposal, either by way of omission, addition, or alteration. If it does, neither party is bound.” 1 Elliott on Contracts, secs. 37, 38; Lawson on Contracts (2d Ed.) sec. 25; New York Life Insurance Co. v. Mary McIntosh, 86 Miss. 236, 38 So. 775.

Tested by this rule, the letter of appellant to appellee was not an acceptance of appellee’s offer, but, on the contrary, was simply a counter proposal'on the part of appellant to sell appellee fans and blotters, which appellee had the right to accept or reject at its pleasure.

Affirmed.