that we can place with you at the prices Forest G. Shaw & Co. our order for the five cars provided you are willing to guarantee the association weights. All stock to be S2S&CM; terms cash less 2 per cent on delivery. You may proceed to ship us one car of the 1x4 #1 common flooring immediately, and we will send you shipping instructions on the remaining four cars later. If you desire references you may write the Commercial Bank & Trust Co. of this city, with whom we do business, the Hazelhurst Lumber Co. Hazelhurst, Miss., C. W. Cochran Lbr. Co. Meridian, Miss., and the J. J. White Lbr. Co. of McComb City, Miss. You will not find us rated for the reason that we have only been in the wholesale business for ourselves for the past year and a half, but for your information will say, that we always discount our bills. Please quote us on anything else you may have to offer, and probably we can give you some more busiWhat is the best price you can make on about 6 or 8 cars 1x6 #2 common flooring S2S&CM? Kindly advise us on receipt of this, whether or not you accept our order for the five cars, and how soon we may expect shipment of the first car. Ship as large car as possible as our profit is very small. ness. Yours truly, Forest G. Shaw & Company. Forest G Shaw Lbr. Co. Gentlemen: We are in receipt of your favor of the 24th, and note that you want the five cars as we are running all of our 4-in. stock standard matching. So far as association weights are concerned, we, of course, and Davenport v. Newton, 71 Vt. 11, 42 Atl. 1087. A counter proposition made by one to whom the owner of land offered to sell for $1,000, to pay $750, terminates the offer of $1,000, and the offer cannot thereafter be accepted. Arthur v. Gordon, 37 Fed. 558. We have your favor of the 22d, quot- all S2S&CM. This is impossible for us ing us on three cars 1x4 # 1 common flooring, $12.50, and two cars 1x4 B. & Better $16 f. o. b. mill, and you may enter tons on the same terms, cannot thereafter accept the original offer of between 2,000 and 5,000 tons. Minneapolis & St. L. R. Co. v. Columbus Rolling Mill, 119 U. S. 149, 30 L. ed. 376, 7 Sup. Ct. Rep. 168. The letter in which the 1,200 tons were ordered contained a reference to the original offer, and it is stated that this reference shows that the order for the 1,200 tons was not an independent proposal, but an answer to the defendant's offer, a qualified acceptance of that offer varying the number of tons, and therefore in law a rejection of the offer; that the negotiation between the parties being thus closed, the one to whom the original offer was made could not afterwards fall back on the original offer, and the attempt to do so is ineffectual, and creates no right against the person making the original offer. Minneapolis & St. L. R. Co. v. Columbus Rolling Mill is cited with approval in Kileen v. Kennedy, 90 Minn. 414, 97 N. W. 126, A resolution of a corporation ratifying a contract made by its agent in its behalf except as to certain clauses contained in the contract is a repudiation of the contract, and releases the party making the offer from all obligation to perform, so that the corporation cannot thereafter, by adopting a resolution ratifying the contract in its entirety, bind the person making the offer to perform. Crabtree v. St. Paul Opera House Co. 39 Fed. 746. In Hyde v. Wrench, 3 Beav. 334, 6 Eng. Rul. Cas. 139, the owner of a farm offered to sell it for £1,000, the person to whom the offer was made offered to give £950. 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 appellee's proposition, and appellee had the right to so treat it and say nothing further on the subject. It did not, however, pursue that course, but, as we have seen, on June 28th again wrote appellant, telling it: Ingram-Day Lumber Co. It is appellant's contention that the correspondence manifested by these letters resulted in a contract, whereby appellee sold and undertook to deliver to appellant five carloads of lumber, only one car of which was delivered. Appellee contends, on the other hand, that by neither by these letters nor otherwise did it contract with appel lant to sell it five carloads of lumber. We are unable to see that such a contract is shown by the letters in question. Briefly stated, appellant by the letter of June 19th called on appellee for a quotation of its prices on the five carloads of flooring. In its letter of June 22d to appellant, appellee, by quoting prices, offered to sell it the five carloads at the prices indicated. After receiving the letter of June 22d appellant had the option, within a reasonable time, to accept or reject the proposal of sale made therein. By its next letter, which was that of June 24th, appellant did neither unqualifiedly, but, instead, told appellee to enter its order for the five cars upon the condition that all the flooring should be S2S&CM, meaning, "Surface two sides and center matched," that is that each piece of flooring should be planed or dressed on both sides, as well as tongued and grooved. We are in receipt of your favor of the 28th and note that it would be impossible for you to work the five cars of flooring S2S&CM, and it would be entirely satisfactory 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-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, there would undoubtedly have been a perfect binding contract; but instead of that, the person to whom the offer was made, made an offer of his own, and he thereby rejected the offer previously made by the owner; concluding, the court states: "I think that it was not afterwards competent for him to revive the proposal of the defendant [the owner] by tendering an acceptance of it, and that therefore there exists no obligation of any sort between the parties." A proposal contained in a telegram by one party to a contract, to the other, for an extension of the time for performance, to which the other party replied by telegram with a counter proposal for a different time, cannot thereafter be accepted by A An offer contained in a letter to sell stock at a certain price, to which the person addressed replied, stating that he would take the stock at a less price, thereupon ceases and cannot be accepted unless renewed. conversation held thereafter in regard to the stock, even though it amounts to a bar gain, rests in parol, and the contract, being one required by the statute of frauds to be in writing, is invalid. Sprague v. Hosie, 155 Mich. 30, 19 L.R.A. (N.S.) 874, 130 Am. St. Rep. 558, 118 N. W. 497. In Davis v. Parish, Litt. Sel. Cas. (Ky.) 153, 12 Am. Dec. 287, a written contract for the sale of land was entered into. conditioned on the land being satisfactory to the purchaser when he saw it. After seeing 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. Yours very truly, Forest G. Shaw & Co. per F. G. Shaw. Appellant here manifested its knowledge that appellee had rejected its proposition as to the five cars of flooring, and therefore expressed its willingness to take them as first offered by appellee; but the offer thus made appellee declined to accept. This attempt to fall back on appellee's original offer was ineffectual, and created no rights against the latter. An offer, when once rejected, loses its legal force, and cannot be accepted thereafter so as to create a binding agreement, without the assent of the party making the original offer. The fact that appellee did, in compliance with appellant's urgent requests, subsequently furnish it one carload of flooring of the desired quality, in the light of all the correspondence, affords no proof that it was a part of the five carloads appellant wished to procure. On the contrary, appellee's letter of July 26th, in substance, advised appellant that it would endeavor to send it a single car, but would not fill its previously rejected order for the five cars. Nothing more than this was shown by any of the subsequent letters between the parties. Those written by appellant merely indicate that it was insisting that a contract had been made for the five carloads of flooring, and those of appellee that there was no such contract. So the case we have is one in which there was an offer by one party to sell, and a qualified acceptance by the other party, based on conditions not contemplated by the party offering to sell or embraced in his offer of sale. This being so, the qualified acceptance was but a counter offer on not like it, and refused to take it upon the terms agreed upon, but proposed other terms which the vendor would not accept. After certain negotiations the purchaser decided to accept the land, but some objection being raised by a third party, who had an interest in the transaction, an action for specific performance was brought. In holding that there was no written contract, the court states that the written contract was to cease and become a nullity if, when the purchaser saw the land, he should not like it; that when he viewed the land and declared his dislike, the contract by its own terms expired, and after it had once expired it could not be resuscitated by parol any more than it could have been originally created by parol. It will be noticed from the foregoing cases that the counter proposition constitutes a rejection of the offer. An express rejection is not necessary, nor need the offer be withdrawn to prevent its subsequent ac seller could accept or reject, and did, in fact, reject. Therefore the negotiations did not result in a binding contract. "It is elementary law that an offer to sell must be accepted as made, and that an acceptance in different terms, or upon other conditions, amounts only to a counter offer on the part of the buyer, which the seller may accept or reject at his pleasure." Gold Spring Distilling Co. v. Stitzel Distilling Co. 150 Ky. 457, 150 S. W. 516. In Hutcheson v. Blakeman, 3 Met. (Ky.) 80, we held that in creating a contract the negotiation may be conducted by letter, and the contract is complete when the answer containing a direct and unconditional acceptance of a distinct proposition is despatched by mail or otherwise, provided it be done with due diligence after the receipt of the letter containing the proposal, and before any intimation is received that the offer is withdrawn; but the acceptance must be unqualified. Indeed, the authorities in support of this proposition are so numerous and uniform that it is deemed unnecessary to quote from them in detail. New York L. Ins. Co. v. Levy, 122 Ky. 457, 5 L.R.A. (N.S.) 739, 92 S. W. 325; Provident Sav. Life Assur. Soc. v. Elliott, 29 Ky. L. Rep. 552, 93 S. W. 659; Hartford L. Ins. Co. v. Milet, 31 Ky. L. Rep. 1297, 105 S. W. 144; Henson v. Wilson, 21 Ky. L. Rep. 1382, 55 S. W. 209, 1 Page, Contr. §§ 37, 44-47; Louisville & N. R. Co. v. Coyle, 123 Kỵ. 854, 8 L.R.A. (N.S.) 433, 124 Am. St. Rep. 384, 97 S. W. 772; Minneapolis & St. L. R. Co. v. Columbus Rolling Mill, 119 U. S. 149, 30 L. ed. 376, 7 Sup. Ct. Rep. 168. In the case last cited it was held that an offer to sell imposes no obligation on either party until accepted according to its terms; that a ceptance. The rejection resulting from the counter proposition effectually terminates the existence of the offer. The situation is then as if the original offer had not been made, so far as any rights or liabilities can arise therefrom. In Sheffield Canal Co. v. Sheffield & R. R. Co. 3 Eng. Ry. & C. Cas. 121, the parties met after the offer was made, and disagreed as to the terms of the contract. Subsequently the person to whom the offer was made attempted to accept it. It was held that this could not be done, and in the course of the opinion it is stated that if an offer made by letter is verbally rejected, the party who makes it is relieved from his liability on that offer unless he consents to renew the treaty on the same footing; the party who has rejected the offer cannot afterwards, at his own option, convert the same offer into an agreement by acceptance. While other terms were proposed by the person to whom the original offer was made, proposal to accept or an acceptance upon terms varying from those offered is a rejection of the offer, and ends the negotiation, unless the offer is renewed, or the proposed modification accepted; and, moreover, that an offer which has been rejected cannot be revised by the tender of an acceptance of it. These authorities are conclusive of the case at bar, and our examination of the cases relied on by appellant's counsel convinces us that they are not in conflict with them. We find no merit in appellant's defense that it was a custom among lumbermen that, when an offer is made such as is con tained in appellee's letter to appellant of June 22d, it implies that the lumber will be S2S&CM, and that, when appellant wrote appellee on June 24th the letter containing his qualified acceptance of the latter's offer, it was not necessary for him to have made any reference to that feature of the contract. The evidence introduced in appellant's behalf did not prove such a custom. A usage or custom of trade to be a guide in the construction of contracts must be uniform, reasonable, and generally known, and the evidence in this case falls short of establishing the custom according to these well-known rules. Kendall v. Russell, 5 Dana, 503, 30 Am. Dec. 696; Houston v. Peters, 1 Met. (Ky.) 558; Caldwell v. Daw. son, 4 Met. (Ky.) 121; Eagle Distilling Co. v. McFarland, 14 Ky. L. Rep. 860. In Tamplet v. Saffell, 15 Ky. L. Rep. 31, the rule in question is stated in these words: "No custom or usage, however well established, can be incorporated into a contract if it is inconsistent with the clear intention of the parties. An expressed exclusion is not necessary. It is sufficient that the custom is excluded by necessary implication." In our opinion the trial court did not err in giving the peremptory instruction directing a verdict for the appellee. judgment is therefore affirmed. Petition for rehearing denied. The there was discussion between the parties, and the case is treated as a rejection of the original offer not arising alone from the counter proposition, but from the use of express words. Cases in general dealing with the right to accept an offer after an express rejection of the same have been excluded from this note. So, cases in which the offer has been withdrawn have in general been excluded; such as Goodridge v. Wood, 133 Ill. App. 483, where the person making the offer had withdrawn it after a counter proposition had been submited, and before the person to whom the offer had been addressed had accepted the original offer. It was here held that the person to whom the offer was A party to whom an offer of contract is made must either accept it wholly or reject it wholly. A proposition to accept on terms varying from those offered is a rejection of the offer, and a substitution in its place of the counter proposition. It puts an end to the negotiation so far as the original offer is concerned. The original offer thereby loses its vitality and is no longer pending; hence the party who has submitted the counter proposition cannot, at his own option, revive and accept the original offer which he has once virtually rejected. In order to give the rejected offer any new vitality, there must be a renewal who made it. of it, or renewed assent to it, by the party In a case within the statute of frauds, the agreement to deal on the basis of the rejected offer must be in writing. (November 21, 1913.) APPEAL by plaintiff from an order of the District Court for Hennepin County overruling a motion for new trial in an action brought to recover damages for failure of defendant to carry out the terms of an alleged written contract for the sale of land to plaintiff. Affirmed. The facts are stated in the opinion. Messrs. C. S. Marden and W. B. Douglas, for appellant: The clause "take care of" the renters is equivalent to an insistence that the renters should be paid simply for the indebtedness due to them from respondent for plowing, as he disclaimed in that letter any other obligation. Headnote by HALLAM, J. addressed could not, after the withdrawal, accept it; but it is stated that under the doctrine of Fox v. Turner, supra, it did did not require even the notification which the offerer gave to the person to whom the offer was addressed to prevent his afterwards accepting the offer. So, in Rapp v. Livingston, 14 Daly, 402, 13 N. Y. S. R. 74, the person to whom the offer was addressed not only wrote suggesting modifications in it, but the person making the offer expressly withdrew it; and after this there was held to be no right to accept the offer in the absence of a renewal. In Foster v. Boston, 22 Pick. 33, a number of landowners submitted a proposition to the city for the opening of a street, agree Yale v. Watson, 54 Minn. 173, 55 N. W. | follows: 957. per acre. "I will accept your offer of $21 This must be spot cash, Messrs. James A. Peterson and Paul subject to the mortgage of $3,000, which J. Thompson for respondent. court: is due next fall. You will have to make renters for the plowing Hallam, J., delivered the opinion of the done this fall." The other is a letter written by plaintiff to defendant, of January 26, 1909, purporting to accept the above proposition. Defendant owned a half section of land in Clay county. Plaintiff entered into negotiations 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 plaintiff, 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 landowners that by this vote the city impliedly declined their offer and that they were no longer bound by it. The court, however, states that this was a distinct proposition on the part of the city, and if not accepted it did not preclude them from act ing upon the offer before made by the landowners, if it was not withdrawn. This statement, however, is obiter in this case, since it was decided that the landowners had withdrawn their original offer and submitted a modification. The element of time entered into the decision in Ortman v. Weaver, 11 Fed. 358. It was here held that a conditional acceptance of an offer made to sell timber, which qualifies the offer as to the amount to be paid in cash, the manner of giving a note for the balance, and some details as to the manner of closing the transaction, which is not acquiesced in by the person making the original offer, prevents the person to whom the original offer was made from accepting the original offer; at least, after the expiration of two weeks. It is stated in the course of the opinion that "I would not say that a person might not accept an offer with qualifications upon one day, and upon the next day, and before his counter proposition is rejected, accept unconditionally. But where the qualified acceptance is rejected, or sufficient time has elapsed upon which a refusal should be inferred, the party to whom the offer is made cannot then treat it as still in force and accept it." The fact that the person making the offer regarded it as still binding, and wrote to the person to whom it was addressed, stating that he revoked the offer, cannot change the rule. Fox v. Turner, 1 Ill. App. 153. Cases in which there is no counter proposition or offer of modification are not with A mere request for a modification, added to an absolute acceptance of the offer, does not amount to a rejection of the offer. Turner v. McCormick, 56 W. Va. 161, 67 L.R.A. 853, 107 Am. St. Rep. 904, 49 S. E. 28. In this case the person to whom an offer to sell coal lands was made accepted the offer and added a request "to make delivery of deed with abstract of title to me in Morgantown, W. Va., on Saturday, June 28, 1902, hour and place to be decided later." An inquiry addressed to one making an offer to sell goods at a stated price and hold the offer open until a stated time, as to whether he would accept the stated price for delivery over a period beyond that indicated in the offer, and if not, the longest limit he would give, does not amount to a rejection of the offer so as to prevent the one to whom the offer was made from thereafter accepting it within the time limited. Stevenson v. McLean, L. R. 5 Q. B. Div. 346, 49 L. J. Q. B. N. S. 701, 42 L. T. N. S. 897, 28 Week. Rep. 916, 6 Eng. Rul. Cas. 82. The case of Zearing v. Crawford, M. & C. Co. 102 Ark. 575, 145 S. W. 226, bears some resemblance to the question under annotation, but is not directly in point, as in this case the parties had, after the rejection of the first offer, entered into a written agreement prescribing other terms. It was held that the written contract withdrew the alleged offer of sale on the basis named at first, and substituted therefor an offer to sell on the basis of another estimate, and the one to whom the first offer was addressed could not thereafter, upon failure to comply with the provisions of the written contract, accept the offer first made. See New York L. Ins. Co. v. Levy, 5 L.R.A. (N.S.) 739, and note appended thereto, on the effect of rejection of portion of application for insurance. W. A. E. |