Averill v. Hedge

12 Conn. 424

• Court: Supreme Court of Connecticut
• Decided: June 15, 1838
• Status: Published

Opinion

Bissell, J.

From the correspondence between these parties, and which is made a part of the case, it appears, that on the 29th of February, 1836, the plaintiffs enquired of the defendant, upon what terms he would supply them with ten or fifteen tons of rods, shapes and band iron. To this communication, the defendant replied, on the 2nd of March, specifying the terms on which he would furnish the articles in question. On the 14th, the plaintiffs wrote to the defendant, on other business; but took no notice of his offer. The defendant replied, on the 16th ; and at the close of his letter, he enquires of the plaintiffs, whether they accept his proposal regarding the rods, shapes and bands. This letter, it appears, arrived at Hartford, on the 18th, about two o’clock afternoon. The plaintiffs accept the defendant’s proposals, in a letter dated on the 19th, but which the jury have found, was not delivered into the post-office, at Hartford, until the 20th ; and the 20th being Sunday, and no mail leaving Hartford on that day, the letter was not actually sent until the morning of the 21st. And it further appears, that this letter, and also another from the plaintiffs, dated the 21st, reached the defendant on the 23rd. It also appears, that the defendant having waited for the plaintiffs’ answer until the 22nd, and having heard nothing from them, then made such arrangements, as rendered it impossible for him to comply with their order. It is further found, that on the 19th of March, the Providence mail left the office at Hartford, at 25 minutes past 5 o’clock ; and that a letter forwarded by that mail, would have reached the defendant on the evening of the following day.

The great question in the case, is, whether upon these facts, there has been such an acceptance of the defendant’s offer, as that he is bound by it.

The jury were instructed, that if the letter written by the plaintiffs, accepting the proposal of the defendant, was not delivered into the post-office at Hartford until the 20th of March, it was not sent in such reasonable time, as to make their acceptance obligatory on the defendant.

Several questions, not immediately growing out of the charge, but which, if decided in favour of the defendant, make an end of the case, have been much discussed at the bar.

1. It has been contended, that the proposal of the defendant, in his letter of the 2nd, was not renewed, by his letter of the 16th of March. Upon this point no opinion was given, by the Judge on the circuit, unless an opinion may be inferred from the ground on which he rested the case in his instructions to the jury. Nor is it essential that a decided opinion on the question should be expressed by this court; because there are other grounds on which -we are unanimously of opinion that the ruling of the Judge below must we sustained.

Were this, however, a turning point in the case, w7e should probably be prepared to say, that the defendant’s letter of the 16th of March, does contain a distinct renewal of his former proposal. His language is certainly very strong to show, that such was his intention. He says: “ Do you accept of our proposal for supplying you with rods, shapes and band iron; and if so, what quantity of each shall we send you ?” Now, we cannot but think, that the fair and obvious construction of this language, is, that the defendant then stood ready to supply the articles upon the terms already specified. And such appears to hare been his own view of the case, as is manifest from his -subsequent letter of the 8th of April.

2. It has been urged, that admitting this letter to contain a renewal of the former proposal, yet by the terms of it, the plaintiffs were bound to signify their acceptance, by return of mail. The question, in this aspect of it, is manifestly independent of any mercantile usage. That the defendant had a right to attach this condition to his offer, is undeniable. The question is, whether he has done so; and whether such is the true construction of his letter.

In his letter of the 2nd of March, the defendant had offered to supply the plaintiffs an assortment of hollow ware, at certain prices ; and in regard to this offer, in his letter of the 16th, he says: “We shall not consider ourselves holden to the offer made you, on the 2nd inst. unless you signify your acceptance thereof, by return of mailand he then puts the enquiry with regard to the rods, shapes and band iron, that has been already mentioned. Now, it should be borne in mind, that the defendant’s proposal in regard to these articles, had already been before the plaintiffs for at least ten or twelve days; and one claim put forth by them, on the trial, was, that during the month of March, the price of these articles was constantly advancing in the market. The question then arises, whether under these circumstances, it was the intention of the defendant to give them further time ; and, whether such intention can be fairly inferred from the language of his communication. In regard to the hollow ware, there can be no question. The plaintiffs were positively required to signify their acceptance by return mail. And when, in the same letter, and under similar circumstances, they are also required to decide upon the proposal in regard to the rods, &c. it is certainly not easy to see, why the defendant should have made, or should have intended to make, a distinction between these classes of articles. v Had the judge directed the jury that the defendant was not bound, unless the plaintiffs signified their acceptance by return of mail, we are by no means satisfied; that the direction would have been wrong.! As, however, he placed the case on grounds more favourable to the plaintiffs’ claim, a decision upon this point is unnecessary. Any further discussion of it is, therefore, waived.

3. We come, then, to the enquiry, whether the instruction actually given to the jury is correct in point of law. And here it may be remarked, that it is very immaterial when the of the plaintiff was written: until sent it was entirely in their power and under their controul; and was no more an accept-anee of the defendant’s offer, than a bare determination, locked up in their own bosoms, and uncommunicated, would have been. And it surely will not be claimed, that mere volitions, mere determination to accept a proposal, constituted a contract The plaintiffs, then, did not accept the defendant’s proposition, until the 20th, and for aught that appears, until the evening that day. That they were bound to accept, within a reasonable time, was distinctly admitted in the argument; and if admitted, the position is undeniable. The case of the plaintiffs, then, comes to this, and this is the precise ground of their claim: That they had a right to hold the defendant’s offer under advisement for more than 48 hours, and to await the arrival of three mails from New- ~York, advising them of the state of the commodity in the market; and having then deter, mined to accept, the defendant was bound by his offer ; and that this constitutes a valid mercantile contract. Now, in regard to such a claim, we can only say, that it appears to us to be in the highest degree unreasonable; and that we know no principle, of no authority, from which it derives the slightest support

Indeed, it seems to us to be subversive of the whole law of contracts. For, it is most obvious, that if, during the interval, the defendant was bound by his offer, there was an entire want of mutuality : the one party was bound, while the other was not. Had the proposition been made at a personal interview between the parties, there can be no pretence, that it would have bound the defendant beyond the termination of the interview. The case of Cooke v. Oxley, 3 Term Rep. 653. is decisive on this point, and goes much further. There A having proposed to sell goods to B, gave him, at his request, a certain time to determine whether he would buy them or not; and it was held, that although B determined within the time, A was not bound. And Lord Kenyon there says: “ Nothing can be clearer than at the lime of entering into this contract, the engagement was all on one side ; the other party was not bound ; it was, therefore, nudum pactum.” So also in the case of Payne v. Cave, 3 Term Rep. 148, it was decided, that the bidder at an auction, under the usual conditions that the highest bidder shall be the purchaser, may retract his bidding at any time before the hammer is down.

Now", it is most manifest, that if the principle of these cases is to be applied to, and govern the present, they are entirely decisive of it in favour of the defendant. It is however claimed, and perhaps justly, that the case of Cooke v. Oxley has been disregarded, if not overruled, by the more modern decisions — or at least, that it has been holden not to apply to mercantile contracts, negotiated through the medium of the post-office. Thus, in the case of Adams v. Lindsell, 1 B. & A. 681. there was an offer to sell goods on certain specified terms, provided an acceptance of the offer was signified by return of mail. This was done; and it was held, (the defendant not having retracted his offer in the mean time,) that the contract was complete. It is not easy to reconcile this decision with that of Cooke v. Oxley, unless it can be distinguished, on the ground, that as the offer was made through the mail, the party is to be considered as repeating the offer at every moment until the other party has had an opportunity of manifesting his acceptance. And this seems to have been the ground on which the case was placed, by the court of King's Bench. They say : “ If the defendants were not bound, by their offer, when accepted by the plaintiffs, till the answer was received, then the plaintiffs ought not to be bound till after they had received the notification that the defendant had received their answer and was bound by it; and so it might go on ad in-finitum. The defendants must be considered in law, as making, during every instant of time their letter was travelling, the same identical offer to the plaintiffs ; and then the contract is completed, by the acceptance of it by the latter.”

These positions are questioned, if not directly controverted, by Best, C. J. in the case of Routledge v. Grant, 4 Bing. 653. He says : “ If they are to be considered as making the offer till it is accepted, the other may say, £ Make no further offer, because I shall not accept itand to place them on an equal footing, the party who offers should have the power of retracting, as well as the other of rejecting ; therefore, I cannot bring myself to admit, that a man is bound when he says, ‘ I will sell you goods on certain terms, receiving your answer in course of post.’” He does not, however, profess to overrule the case of Adams v. Lindsell; nor was it necessary ; as there were other grounds on which the rule in Routledge v. Grant,. was discharged.

In the case of McCullock v. The Eagle Insurance Company, 1 Pick. 281. decided by the supreme court of Massachusetts, the case of Cooke v. Oxley is cited with approbation and followed. And the decision there cannot easily be reconciled to the doctrines advanced in Adams v. Lindsell. For it was there held, that an offer to insure the plaintiff’s vessel, at a given premium, communicated by mail, and promptly accepted, was not binding on the defendants, they having, in the mean time, written a letter retracting their offer. This decision proceeded upon the ground that the treaty was open until the plaintiff’s letter, notifying his acceptance, was received ; and that, in the mean time, the defendants have a right to withdraw their offer. Parker, C. J., in giving the opinion of the court, said : “ The offer did not bind the plaintiff, until it was accepted ; and it could not be accepted, to the knowledge of the defendants, until the letter announcing the acceptance was received, or at most, until the regular time for its arrival by mail had elapsed.”

The case of A dams v. Lindsell is regarded as an authority, and followed, by the supreme court of errors of the state of New- York, in Mactier v. Frith, 6 Wend. 103. And there the doctrine is asserted, that the acceptance of an offer, made through the medium of a letter, binds the bargain, if the party making the offer has not, in the mean time, revoked it. And the rule adopted in Massachusetts, that regards the contract as incomplete, until the party making the offer is notified of the acceptance, is rejected. The doctrine of Adams v. Lindsell and of Mactier v. Frith, may, perhaps, be considered as receiving the implied sanction of the supreme court of the United States, in the case of Eliason v. Henshaw, 4 Wheat. 225.; although a decision upon the precise point was unnecessary ; the offer there not having been accepted according to the terms on which it was made.

We do not feel that the task is imposed upon us of reconciling these conflicting authorities, if indeed they do conflict; for within the principle of none of them can the claim of the plaintiffs be established.

In Mactier v. Frith, which goes as far as any of the cases on this subject, the rule is laid down, that the offer continues until the letter containing it is received, and the party has had a fair opportunity to answer itAnd it is further said, that a letter written would not be an acceptance, so long as it remained in the possession or under the controul of the writer. An offer, then, made through a letter, is not continued beyond the time that the party has a “fair opportunity” to answer it. This is substantially the doctrine of the charge. And it is not only highly reasonable, but is supported by all the analogies of the law. Once establish the principle that a party, to whom an offer is made, may hold it under consideration, more than 48 hours, watching, in the mean time, the fluctuations of the market, and then bind the other party, by his acceptance, and it is believed that you create a shock throughout the commercial community, utterly destructive of all mercantile confidence. No offers would be made by letter.

It would be unsafe to make them.

It is only necessary to apply these principles to the case before us; and their application is exceedingly obvious. The proposal of the defendant, which had already been several days before the plaintiffs, was renewed, early on the afternoon of the 18th. They show no act done by them, signifying their acceptance, until the evening of the 20th. Was this within a reasonable time? Was this the first fair opportunity of manifesting their acceptance ? We think this can hardly be claimed. Had the defendant had an agent in Hartford, through whom the offer was made, might the plaintiffs thus have delayed the communication of their acceptance to him 1 This will not be pretended. And can it vary the principle, that the offer, instead of being thus made, was made through the agency of the post-office ? Had the offer of the defendant been promptly accepted, information of the acceptance would have reached the defendant, on the evening of the 20th, in due course of mail. He waited until the 22nd; and hearing nothing from the plaintiffs, he then virtually retracted his offer, by making such arrangements as made it impossible for him to fill their order. We think he was fully justified in so doing; and that upon every sound principle, the rule in this case must be discharged.

In this opinion the other Judges concurred.

New trial not to be granted.