Bruce v. Bishop , 43 Vt. 161 ( 1870 )

The opinion of the court was delivered by

Wheeler, J.

The offer of the defendant, upon which the plaintiff relies, was to give the plaintiff forty dollars for the cow if he would deliver her to the defendant in as good condition as she was in when Sleeper bought her. The plaintiff did not then own the cow, and both parties • knew that he did not own her. The plaintiff did not accept the offer, but went away expressing an intention to get the cow and drive her to the defendant the next day. If the plaintiff had then accepted the offer, it would not have been a sale of the cow, for the plaintiff did not then have the cow to sell. It would have been an agreement, on the part of the plaintiff, to procure the cow and deliver her to the defendant, in as good condition as she was in when Sleeper bought her ; and an agreement on the. part of the defendant to pay him forty dollars for doing so. But the plaintiff did not accept the offer so as to bind himself to that agreement, therefore the defendant was not bound to his offer. An offer, unaccepted, is not a contract; in such cases both parties must be bound or neither is. When the parties separated nothing had taken place to impose any obligation upon either, with reference to the cow, until they should meet again, and, upon the facts found, both must so have understood it. The defendant’s offer was, to give the plaintiff forty dollars for the cow, if he would deliver her to him in a certain condition; not to give him that sum if he would deliver her in the defendant’s yard in that condition. This implied that a personal meeting was to be had for the delivery of the cow and payment of the price; and if the plaintiff had accepted the offer so as to have made a contract upon it, a delivery of the cow in the defendant’s yard would not have been a performance on the plaintiff ’s part that would have entitled him to claim that the defendant should perform on his part. When the plaintiff left the cow in the defendant’s yard, it was not done in pursuance of any. agreement, and the defendant was not bound to take any action with reference to her to prevent liability for her. Suffering the cow to remain in the yard did not bind any agreement, for there was no agreement to be bound. The court below seems to have held that the facts found made a contract of sale, and that the defendant, by permitting the cow to remain in his yard, without using due diligence to. notify the plaintiff that he did not accept her on the contract, so far accepted her that this acceptance bound the contract and made him liable for the price. In this we think there was error.

The defendant and Sleeper were in litigation about the cow, and the plaintiff was in the employment of Sleeper at the time when the parties met. Their conversation commenced in the way of bantering between them about the importance of that litigation, and not in the way of making a trade in the usual course of business. From the testimony referred to, it appears that some of the witnesses, who were there and heard the conversation, when asked whether the conversation was serious or not, answered that they could not tell, but could tell what was said. We think that the circumstances and this testimony did tend to show that the defendant’s offer was intended and understood to be merely jocose, and not in earnest, and that the court erred in not submitting to the jury to find how the parties, in fact, intended and understood it, in that respect.

•For these reasons the judgment is reversed, and the cause remanded.