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that we can place with you at the prices our order for the five cars provided you indicated, if you think them justifiable: are willing to guarantee the association terms, cash less 2 per cent, net to you, no weights. All stock to be S2S&CM; terms commission inciuded.

The next cash less 2 per cent on delivery. You may above f. o. b. mill. We also have inquiries proceed to ship us one car of the 1st #1 for the following stock on which we would common flooring immediately, and we will be pleased to have you quote us your send you shipping instructions on the reprices f. o. b. mill, and advise us if you maining four cars later.

If you desire are willing to guarantee the association references you may write the Commercial weights:

3 cars 1x4 #1 common Bank & Trust Co. of this city, with Flg. 2 cars 1x4 B. & Better Flg. You will whom we do business, the lazelhurst Lum: favor us with an early reply as we wish ber Co. Hazelhurst, Miss., C. W. Cochran to place our orders within the next week. Lbr. Co. Meridian, Miss., and the J. J. Yours truly,

White Lbr. Co. of McComb City, Miss. You Forest G. Shaw & Co.

will not find us rated for the reason that

we have only been in the wholesale business To this the mill replied as follows: for ourselves for the past year and a half,

but for your information will say, that we

June 22d, 1909. always discount our bills. Please quote us Forest G. Shaw & Company,

on anything else you may have to offer, and Louisville, Ky.

probably we can give you some more busiGentlemen :

What is the best price you can make Replying to your favor of June 19th we on about 6 or 8 cars 1x6 #2 common floorare pleased to quote you three cars 1x4 ing S2S&CM? Kindly advise us on receipt No. 1 common at $12.50 f. o. b. cars the of this, whether or not you accept our mill, 2 cars B. & Better at $16. We are order for the five cars, and how soon not in a position to quote you on any other may expect shipment of the first car. Ship items on your inquiry. Thanking you for as large car as possible as our profit is the inquiry, we are, Yours truly,

Yours truly,
Ingram-Day Lumber Company,

Forest G. Shaw & Company.
F. L. Platts, Sales Mgr.

The plaintiff then wrote as follows: And Shaw answered:

June 28th, 1909.

Forest G Shaw Lbr. Co.
Louisville, Ky., June 24th, 1909.

Louisville, Ky.
Ingram Lumber Company,

Gentlemen :-
Lyman, Miss.

We are in receipt of your favor of the Gentlemen :

24th, and note that you want the five cars We have your favor of the 22d, quot- all S2S&CM. This is impossible for us ing us on three cars 1x4 # 1

running all of

4-in. flooring, $12.50, and two cars 1x4 B. & stock standard matching. So far as associaBetter $16 f. o. b. mill, and you may enter ' tion weights are concerned, we, of course, tons on the same terms, cannot thereafter and Davenport v. Newton, 71 Vt. 11, 42 accept the original offer of between 2,000 Atl. 1087. and 5,000 tons. Minneapolis & St. L. R. A counter proposition made by one to Co. v. Columbus Rolling Mill, 119 U. S. whom the owner of land offered to sell for 149, 30 L. ed. 376, 7 Sup. Ct. Rep. 168. $1,000, to pay $750, terminates the offer of The letter in which the 1,200 tons were $1,000, and the offer cannot thereafter be ordered contained a reference to the origi- accepted. Arthur v. Gordon, 37 Fed. 558. nal offer, and it is stated that this reference A resolution of a corporation ratifying shows that the order for the 1,200 tons was a contract made by its agent in its behalf not an independent proposal, but an an- except as to certain clauses contained in swer to the defendant's offer, a qualified the contract is a repudiation of the contract, acceptance of that offer varying the number and releases the party making the offer of tons, and therefore in law a rejection of from all obligation to perform, so that the the offer; that the negotiation between the corporation cannot thereafter,' by adopting parties being thus closed, the one to whom a resolution ratifying the contract in its the original offer was made could not after- entirety, bind the person making the offer wards fall back on the original offer, and to perform. Crabtree v. St. Paul Opera the attempt to do so is ineffectual, and House Co. 39 Fed. 746. creates no right against the person making In Hyde v. Wrench, 3 Beav. 334, 6 Eng. the original offer.

Rul. Cas. 139, the owner of a farm offered Minneapolis & St. L. R. Co. v. Columbus to sell it for £1,000, the person to whom Rolling Mill is cited with approval in Kileen the offer was made offered to give £950. v. Kennedy, 90 Minn. 414, 07 N. W. 126, 'The owner asked for a few days to consider,






would expect to guarantee weights, or in Nothing in its previous letter of June 19th other words, would make you a delivered asking of appellee a proposition of sale and price adding the freight at the established prices indicated that the flooring inquired rate and based on association weights. On about was expected to be S2S&CM. Ap1x6 #2 common flooring, would say that pellant's letter of June 24th, instead of we are oversold on this item and would not being an acceptance of the proposition of be in a position to offer any for at least sale contained in appellee's letter of June sixty days. Regretting that we are not 22d, was more in the nature of a counter able to get together on this, we are, proposition, which had practically the same Yours truly,

legal effect as an avowed rejection of apIngram-Day Lumber Co. pellee's proposition, and appellee had the F. L. Platts, Sales Mgr. right to so treat it and say nothing fur

ther on the subject. It did not, however, It is appellant's contention that the cor- pursue that course, but, as we have seen, on respondence manifested by these letters re- June 28th again wrote appellant, telling sulted in a contract, whereby appellee sold it: and undertook to deliver to appellant five carloads of lumber, only one car of which was delivered. Appellee contends, on the 23d, and note you want the five cars all

We are in receipt of your favor of the other hand, that by neither by these letters S2S&CM. This is impossible as we are runnor otherwise did it contract with appel ning all of our 4-in. stock standard matchlant to sell it five carloads of lumber. We


Regretting that we are not able to are unable to see that such a contract is

get together on this we are, shown by the letters in question. Briefly

Yours very truly, stated, appellant by the letter of June 19th

Ingram-Day Lumber Co. called on appellee for a quotation of its prices on the five carloads of flooring. In its letter of June 22d to appellant, appellee, It is patent that down to this time the by quoting prices, offered to sell it the five minds of the parties had not gotten tocarloads at the prices indicated. After re- gether, consequently there was thus far no ceiving the letter of June 22d appellant contract between them. Appellee's letter had the option, within a reasonable time, of June 28th ended negotiations, and left to accept or reject the proposal of sale the parties as they were before the first made therein. By its next letter, which letter from appellant was written. It canwas that of June 24th, appellant did neither not be doubted that appellant thus underunqualifiedly, but, instead, told appellee to stood it. This is fully shown by its letter enter its order for the five cars upon the to appellee of June 30th, wherein it is said : condition that all the flooring should be We are in receipt of your favor of the S2S&CM, meaning, “Surface two sides and 28th and note that it would be impossible center matched,” that is that each piece of for you to work the five cars of flooring flooring should be planed or dressed on S2S&CM, and it would be entirely satisboth sides, as well as tongued and grooved. 'factory to us if you work it regular. Please and at the end of this time refused the of- , the other party by a letter, where the telefer, whereupon the person to whom the orig. 1 gram containing the counter proposal coninal offer was made accepted that. Upon tained no notice of a further reply by mail these facts the court states that the owner being given. Goulding v. Hammond, 4 C. offered to sell for a stated price, and had C. A. 533, 13 U. S. App. 30, 54 Fed. 639. this at once been unconditionally accepted, An offer contained in a letter to sell stock there would undoubtedly have been a perfect at a certain price, to which the person adbinding contract; but instead of that, the dressed replied, stating that he would take person to whom the offer was made, made the stock at a less price, thereupon ceases an offer of his own, and he thereby rejected and cannot be accepted unless renewed. A the offer previously made by the owner; conversation held thereafter in regard to concluding the court states: “I think the stock, even though it amounts to a bar: that it was not afterwards competent for gain, rests in parol, and the contract, being him to revive the proposal of the defend- one required by the statute of frauds to ant (the owner] by tendering an acceptance be in writing, is invalid. Sprague v. Hosie, of it, and that therefore there exists no ob- 155 Mich. 30, 19 L.R.A.(N.S.) 874, 130 Am. ligation of any sort between the parties.” St. Rep. 558, 118 N. W. 497.

A proposal contained in a telegram by In Davis v. Parish, Litt. Sel. Cas. (Ky.) one party to a contract, to the other, for 153, 12 Am. Dec. 287, a written contract an extension of the time for performance, for the sale of land was entered into. conto which the other party replied by tele- ditioned on the land being satisfactory to gram with a counter proposal for a differ- the purchaser when he saw it. After seeent time, cannot thereafter be accepted by'ing the land, the purchaser declared he did get behind the car #1 common flooring, the part of the intending buyer, which the and let it come forward at once.

seller could accept or reject, and did, in Yours very truly,

fact, reject. Therefore the negotiations Forest G. Shaw & Co. did not result in a binding contract. “It per F. G. Shaw. is elementary law that an offer to sell must

be accepted as made, and that an acceptance Appellant here manifested its knowledge in different terms, or upon other conditions, that appellee had rejected its proposition as amounts only to a counter offer on the part to the five cars of flooring, and therefore of the buyer, which the seller may accept expressed its willingness to take them as or reject at his pleasure.”

Gold Spring first offered by appellee; but the offer thus Distilling Co. v. Stitzel Distilling Co. 150 made appellee declined to accept. This Ky. 457, 150 S. W. 516. attempt to fall back on appellee's original In Hutcheson v. Blakeman, 3 Met. (Ky.) offer was ineffectual, and created no rights 80, we held that in creating a contract the against the latter. An offer, when once re-negotiation may be conducted by letter, and jected, loses its legal force, and cannot be the contract is complete when the answer accepted thereafter so as to create a binding containing a direct and unconditional acagreement, without the assent of the party ceptance of a distinct proposition is demaking the original offer. The fact that spatched by mail or otherwise, provided it appellee did, in compliance with appellant's be done with due diligence after the receipt urgent requests, subsequently furnish it one of the letter containing the proposal, and carload of flooring of the desired quality, before any intimation is received that the in the light of all the correspondence, af- offer is withdrawn; but the acceptance fords no proof that it was a part of the must be unqualified. Indeed, the authorifive carloads appellant wished to procure. ties in support of this proposition are so On the contrary, appellee's letter of July numerous and uniform that it is deemed 26th, in substance, advised appellant that unnecessary to quote from them in detail. it would endeavor to send it a single car, New York L. Ins. Co. v. Levy, 122 Ky. 457, but would not fill its previously rejected 5 L.R.A. (N.S.) 739, 92 S. W. 325; Provi. order for the five cars. Nothing more than dent Sav. Life Assur. Soc. v. Elliott, 29 this was shown by any of the subsequent Ky. L. Rep. 552, 93 S. W. 659; Hartletters between the parties. Those written ford L. Ins. Co. v. Milet, 31 Ky. L. Rep. by appellant merely indicate that it was 1297, 105 S. W. 144; Henson v. Wilson, insisting that a contract had been made 21 Ky. L. Rep. 1382, 55 S. W. 209, 1 for the five carloads of flooring, and those Page, Contr. $$ 37, 44-47; Louisville & N. of appellee that there was no such contract. R. Co. v. Coyle, 123 Ky. 854, 8 L.R.A. (N.S.) So the case we have is one in which there 433, 124 Am. St. Rep. 384, 97 S. W. 772; was an offer by one party to sell, and a Mir eapolis & St. L. R. Co. v. Columqualified acceptance by the other party, bus Rolling Mill, 119 U. S. 149, 30 L. ed. based on conditions not contemplated by 376, 7 Sup. Ct. Rep. 168. In the case last the party offering to sell or embraced in cited it was held that an offer to sell imhis offer of sale. This being so, the quali- poses no obligation on either party until fied acceptance was but a counter offer on' accepted according to its terms; that a not like it, and refused to take it upon the ceptance. The rejection resulting from the terms agreed upon, but proposed other terms counter proposition effectually terminates which the vendor would not accept. After the existence of the offer. The situation is certain negotiations the purchaser decided then as if the original offer had not been to accept the land, but some objection being made, so far as any rights or liabilities can raised by a third party, who had an interest arise therefrom. in the transaction, an action for specific In Sheffield Canal Co. v. Sheffield & R. R. performance was brought. In holding that Co. 3 Eng. Ry. & C. Cas. 121, the parties there was no written contract, the court met after the offer was made, and disagreed states that the written contract was to as to the terms of the contract. Subsequentcease and become a nullity if, when the pur- ly the person to whom the offer was made chaser saw the land, he should not like it; attempted to accept it. It was held that that when he viewed the land and declared this could not be done, and in the course of his dislike, the contract by its own terms the opinion it is stated that if an offer made expired, and after it had once expired it by letter is verbally rejected, the party could not be resuscitated by parol any more who makes it is relieved from his liability than it could have been originally created on that offer unless he consents to renew by parol.

the treaty on the same footing; the party It will be noticed from the foregoing cas. who has rejected the offer cannot afteres that the counter proposition constitutes wards, at his own option, convert the same a rejection of the offer. An express rejec. offer into an agreement by acceptance. tion is not necessary, nor need the offer be While other terms were proposed by the withdrawn to prevent its subsequent ac-'person to whom the original offer was made,



proposal to accept or an acceptance upon MINNESOTA SUPREME COURT. terms varying from those offered is a rejection of the offer, and ends the negotia

JAMES LEWIS, Appt., tion, unless the offer is renewed, or the proposed modification accepted; and, more.

JENS JOHNSON, Respt. over, that an offer which has been rejected cannot be revised by the tender of an ac

(123 Minn. 409, 143 N. W. 1127.) ceptance of it. These authorities are con

Contract offer - counter proposition clusive of the case at bar, and our examina

effect. tion of the cases relied on by appellant's A party to whom an offer of contract is counsel convinces us that they are not in made must either accept it wholly or reconflict with them.

ject it wholly. A proposition to accept on We find no merit in appellant's defense terms varying from those offered is a rethat it was

a custom among lumbermen jection of the offer, and a substitution in that, when an offer is made such as is con

its place of the counter proposition. It tained in appellee's letter to appellant of puts an end to the negotiation so far as the

original offer is concerned. The original June 22d, it implies that the lumber will offer thereby loses its vitality and is no be S2S&CM, and that, when appellant wrote longer pending; hence the party who has appellee on June 24th the letter containing submitted the counter proposition cannot, his qualified acceptance of the latter's offer, at his own option, revive and accept the it was not necessary for him to have made original offer which he has once virtually any reference to that feature of the con- rejected. In order to give the rejected offer tract. The evidence introduced in appel- of it, or renewed assent to it, by the party

any new vitality, there must be a renewal lant's behalf did not prove such a custom. who made it. In a case within the statute A usage or custom of trade to be a guide of frauds, the agreement to deal on the in the construction of contracts must be basis of the rejected offer must be in writuniform, reasonable, and generally known, ing. and the evidence in this case falls short of establishing the custom according to

(November 21, 1913.) these well-known rules. Kendall v. Russell, 5 , 30 Am. Dec. 696; Houston v. Peters, . Met. (Kym) 558; Caldwell v. Daw: A "District Court for "Hennepin County

PPEAL by plaintiff an order son, 4 Met. (Ky.) 121; Eagle Distilling Co. overruling a motion for new trial in an acv. McFarland, 14 Ky. L. Rep. 860. In tion brought to recover damages for failure Tamplet v. Saffell, 15 Ky. L. Rep. 31, the of defendant to carry out the terms of an alrule in question is stated in these words: leged written contract for the sale of land "No custom or usage, however well estab. to plaintiff. Affirmed. lished, can be incorporated into a contract The facts are stated in the opinion. if it is inconsistent with the clear intention Messrs. C. S. Marden and W. B. Dongof the parties. An expressed exclusion is las, for appellant: not necessary. It is sufficient that the cus

The clause "take care of" the renters is tom is excluded by necessary implication.” equivalent to an insistence that the renters

In our opinion the trial court did not should be paid simply for the indebtedness err in giving the peremptory instruction di- due to them from respondent for plowing, recting a verdict for the appellee. The

as he disclaimed in that letter any other judgment is therefore affirmed.


Petition for rehearing denied.

Headnote by HALLAM, J. there was discussion between the parties, , addressed could not, after the withdrawal, and the case is treated as a rejection of accept it; but it is stated that under the the original offer not arising alone from the doctrine of Fox v. Turner, supra, it did counter proposition, but from the use of did not require even the notification which express words.

Cases in general dealing the offerer gave to the person to whom the with the right to accept an offer after an offer was addressed to prevent his afterexpress rejection of the same have been wards accepting the offer. excluded from this note.

So, in Rapp v. Livingston, 14 Daly, 402, So, cases in which the offer has been | 13 N. Y. S. R. 74, the person to whom the withdrawn have in general been excluded; offer was addressed not only wrote suggestsuch as Goodridge v. Wood, 1:33 II. App. ing modifications in it, but the person mak483, where the person making the offer had ing the offer expressly withdrew it; and withdrawn it after a counter proposition after this there was held to be no right to had been submited, and before the person / accept the offer in the absence of a renewal. to whom the offer had been addressed had In Foster v. Boston, 22 Pick. 33, a numaccepted the original offer. It was here ber of landowners submitted a proposition held that the person to whom the offer was to the city for the opening of a street, agree Yale v. Watson, 54 Minn. 173, 55 N. W. follows: “I will accept your offer of $21 957.

per acre.

This must be spot cash, Messrs. James A. Peterson and Paul subject to the mortgage of $3,000, which J. Thompson for respondent.

is due next fall. You will have to make

settlement to the renters for the plowing Hallam, J., delivered the opinion of the done this fall." The other is a letter court:

written by plaintiff to defendant, of JanuDefendant owned a half section of land ary 26, 1909, purporting to accept the above in Clay county. Plaintiff entered into nego- proposition. tiations to buy it. The negotiations were The trouble arises from the fact that conducted by correspondence and a num- there was intervening correspondence which ber of letters were exchanged between them. precludes our regarding these two letters Plaintiff claims a contract of sale was as a completed offer and acceptance. This made and that it was broken by defend- intervening correspondence was as follows: ant. Defendant denies that any contract When plaintiff received the letter of Januwas ever made. There are two letters ary 8th, instead of accepting its terms, he which, if they could be taken alone, would wrote the following: “Now, Mr. J. Johnmake out a contract. The first is a letter son, I will give you what I said for the written by defendant to plaintill, dated land, $21 per acre,”-entirely eliminating January 8, 1909, making a proposition as the matter of settlement with the renters ing to relinquish their title to lands free of in the scope of the present note. The folcharge. The city thereupon, without ex | lowing case illustrates this kind of case, pressly declining or accepting this offer, and also illustrates the fact that a mere passed a vote offering to pay a stated sum inquiry made of the person making the offer for the accomplishment of the improve does not amount to a rejection thereof: ment. It was contended on the part of the A mere request for a modification, added landowners that by this vote the city im- to an absolute acceptance of the offer, does plieilly declined their offer and that they not amount to a rejection of the offer. were no longer bound by it. The court, how- Turner v. McCormick, 56 W. Va. 161, 67 ever, states that this was a distinct propo. L.R.A. 853, 107 Am. St. Rep. 904, 49 S. E. sition on the part of the city, and if not 28. In this case the person to •whom an accepted it did not preclude them from act offer to sell coal lands was made accepted ing upon the offer before made by the land- tie offer and added a request "to make deowners, if it was not withdrawn. This livery of deed with abstract of title to me statement, however, is obiter in this case, in Morgantown, W. Va., on Saturday, June since it was decided that the landowners 28, 1902, hour and place to be decided later." had withdrawn their original offer and sub- An inquiry addressed to one making an mitted a modification.

offer to sell goods at a stated price and hold The element of time entered into the the offer open until a stated time, as to decision in Ortman v. Weaver, 11 Fed. 358. whether he would accept the stated price It was here held that a conditional accept- for delivery over a period beyond that inance of an offer made to sell timber, which dicated in the offer, and if not, the longest qualifies the offer as to the amount to be limit he would give, does not amount to a paid in cash, the manner of giving a note rejection of the offer so as to prevent the for the balance, and some details as to the one to whom the offer was made from theremanner of closing the transaction, which is after accepting it within the time limited. not acquiesced in by the person making the Stevenson v. McLean, L. R. 5 Q. B. Div. original offer, prevents the person to whom 346, 49 L. J. Q. B. N. S. 701, 42 L. T. N. the original offer was made from accepting S. 897, 28 Week. Rep. 916, 6 Eng. Rul. Cas. the original offer; at least, after the ex- 82. piration of two weeks. It is stated in the The case of Zearing v. Crawford, M. course of the opinion that “I would not say & C. Co. 102 Ark. 575, 145 S. W. 226, bears that a person might not accept an offer some resemblance to the question under anwith qualifications upon one day, and upon notation, but is not directly in point, as the next day, and before his counter propo- in this case the parties had, after the resition is rejected, accept unconditionally. jection of the first offer, entered into a But where the qualified acceptance is re- written agreement prescribing other terms. jected, or sufficient time has elapsed upon It was held that the written contract withwhich a refusal should be inferred, the par- drew the alleged offer of sale on the basis ty to whom the offer is made cannot then named at first, and substituted therefor an treat it as still in force and accept it." offer to sell on the basis of another estimate,

The fact that the person making the of- and the one to whom the first offer was adfer regarded it as still binding, and wrote dressed could not thereafter, upon failure to the person to whom it was addressed, to comply with the provisions of the writstating that he revoked the offer, cannot ten contract, accept the offer first made. change the rule. Fox v. Turner, 1 Ill. App. See New York L. Ins. Co. v. Levy, 5 153.

L.R.A.( N.S.) 739, and note appended there. ('ases in which there is no counter propo- to, on the effect of rejection of portion of sition or offer of modification are not with application for insurance. W. A. E.

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