DENSON, J.
There are many grounds in the assignment of errors, which, on account of undisputed facts in the case, it will not be necessary for us to consider. The plaintiff was a corporation in the state of North Carolina, doing business as á manufacturer and seller of chairs. It had in its employ one Smathers as a traveling salesman of its products. Smathers, in April, 1903, in the course of his employment as such salesman, took from the defendant, who was engaged in the furniture business in Mobile, Ala., an order for a bill of chairs amounting to $270. This order stipulated that the chairs were to be shipped in installments. It was forwarded by Smathers to the plaintiff.. It is conceded that the plaintiff accepted this order and made shipment on it of all the chairs stipulated for in it. It was also conceded by plaintiff that the defendant had, before the commencement of this suit, paid all that was to be paid on the order except $90. The defendant contended that by reason of discounts agreed to be allowed he owed only $81, and the verdict of the jury is in accord with this contention. So that, so far as the amount due on the plaintiff’s claim is concerned, if there was error in the rulings of the court on the admissibility of evidence to support plaintiff’s claim, certainly it was not prejudicial to the appellant.
But the defendant pleaded a set-off. His contention on the trial was that on the 2d day of September, 1903, he gave to Smathers, the salesman of plaintiff, an order for chairs; that the plaintiff received the order, but never shipped the chairs, and declined to do so. Defendant insisted that this order, when given to Smathers, was a complete contract, binding plaintiff to ship the chairs, and the plaintiff breached it. The defendant contends that, after Smathers received his last order, chairs such as were specified in the order advanced in price, and he, on account of plaintiff not shipping the chairs on the last order, was damaged in the sum of $48.67; that being the difference between the price named in the order and the price when the order, according to his insistence, should have been filled. At the conclusion of defendant’s evidence the court on motion of the plaintiff, [633]*633excluded, all of the evidence offered by the defendant, and at the request of the plaintiff in writing charged the jury, if they believed the evidence, they should find a verdict for the plaintiff. The question 'for consideration, in connection with defendant’s contention, involves the authority of the salesman and its extent. The plaintiff’s contention in this respect was, and is, that Sniathers was only a soliciting agent, and that orders taken by him were never binding on it until they were approved and accepted by plaintiff. The witness Cates testified (and it was competent evidence under Bensberg v. Harris, 46 Mo. App. 404) that Smathers was plaintiff’s traveling salesman, with authority to take orders on commission subject to plaintiff’s approval. In the case of Simon & Son v. Johnson, 101 Ala. 368, 13 South. 491, one phase of the authority of a traveling salesman was considered and determined by this court; the precise question there determined being that a traveling salesman of merchandise, making sales by sample on a credit or for cash to be paid on receipt of the goods or the invoice of them, has no implied authority to collect the money agreed to be paid from the purchaser.
The precise question presented by this record has not been determined by this court. In the case of Clough v. Whitcomb, an order was taken for goods by a salesman having authority similar to that with which the salesman in this case was clothed. The trial court charged the jury: “If Clark (the salesman) made the contract with the defendant for the goods, and the plaintiff agreed to give Clark a commission on said goods, then Clark was Ms agent to sell said goods.” The appellate court, in holding the instruction bad, said: “A commission allowed to one who solicits orders upon sales effected through such orders does not constitute him or prove him to be an agent with authority to make absolute contracts of sale.” — Clough v. Whitcomb, 105 Mass. 482; Bensberg v. Harris, 46 Mo. App. 404; Finch v. Mansfield, 97 Mass. 89; Burbank v. McDuffee, 65 Me. 135. So in this instance Smathers “did not sell the goods, or even contract to sell them.' When the defend[634]*634ant had. completed his transaction with Smathers, there had been no binding contract- made, or any sale, absolute or conditional. The defendant could have counter- - manded. his order at- any time before the goods were shipped, and the- plaintiff could have refused to accept the order. Neither party had become bound by anything then done. . The order- of defendant was a mere proposal, to be accepted or not as the plaintiff might see fit, and he could have withdrawn it before its acceptance. The minds of the parties . had not met,- and, there had been no mutual assent or aggregatio mentium. Benj. on Sales, §§ 40, 70; Johnson v. Filkington, 39 Wis. 62; McKindly v. Dunham, 55 Wis. 515, 13 N. W. 485, 42 Am. Rep. 740; Bensberg v. Harris, 46 Mo. App. 404; Deane & Co. v. Everett, 90 Iowa, 242, 57 N. W. 874; McCormick Harvesting Co. v. Richardson, (Iowa) 56 N. W. 682; Stensgaard v. Smith, (Minn.) 44 N. W. 669, 19 Am. St. Rep. 205; Eskridge v. Glover, 5 Stew. & P. 264, 26 Am. Dec. 344. In the light of the elementary principles and -of the adjudged cases, it seems clear that the order or writing .in question does not constitute a contract, in the absence of acceptance or of any action-under it by the plaintiff. It does not purport to be a contract between the parties. “By it plaintiff was not :obligated to do anything" on its part. Plaintiff does not undertake, by the terms of the writing, to-ship the .chairs on the proposed terms. It is .no -more than a request by the salesman-that the plaintiff should ship to defendant the goods named. It may be said to be an order, but it lacks an essential element of a contract — -mutual assent. . Being only a request or order, which required acceptance by plaintiff to give it the force of a contract, it - folloAvs, as has already been stated; that it might be withdrawn or countermanded at any time prior to its being so accepted.” ■
. We do not say, however, that the acceptance must be a formal one. It is -insisted that, the. plaintiff having accepted and filled the previous order given to. the plaintiff’s salesman and having held the last order from some time in the eai’ly -part of September until November 12th, the plaintiff must be held to have accepted the or-[635]*635tier, and that it is estopped from urging non acceptance. Estoppels must he mutual, or they are not effectual. As we have seen, there is no time, from the time such an order is received until it is accepted, that the person giving the order cannot countermand it. It is plain that mere silence on the part of the plaintiff after receiving the order, without any act tending to show an acceptance, would not cut off the right of defendant to countermand. If not, then it cannot, with show of reason, he insisted that silence alone should constitute an acceptance of the order on the part of the plaintiff. Plaintiff said nothing about the order, and did nothing, with regard to it, until on the 12th of November, 1903, in reply to a letter of the defendant written on the 10th of that month, plaintiff wrote the defendant as follows: “Referring to your order of 9-2, we find it reads 10 plus 5 off'in 60 days, for ten doz.
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DENSON, J.
There are many grounds in the assignment of errors, which, on account of undisputed facts in the case, it will not be necessary for us to consider. The plaintiff was a corporation in the state of North Carolina, doing business as á manufacturer and seller of chairs. It had in its employ one Smathers as a traveling salesman of its products. Smathers, in April, 1903, in the course of his employment as such salesman, took from the defendant, who was engaged in the furniture business in Mobile, Ala., an order for a bill of chairs amounting to $270. This order stipulated that the chairs were to be shipped in installments. It was forwarded by Smathers to the plaintiff.. It is conceded that the plaintiff accepted this order and made shipment on it of all the chairs stipulated for in it. It was also conceded by plaintiff that the defendant had, before the commencement of this suit, paid all that was to be paid on the order except $90. The defendant contended that by reason of discounts agreed to be allowed he owed only $81, and the verdict of the jury is in accord with this contention. So that, so far as the amount due on the plaintiff’s claim is concerned, if there was error in the rulings of the court on the admissibility of evidence to support plaintiff’s claim, certainly it was not prejudicial to the appellant.
But the defendant pleaded a set-off. His contention on the trial was that on the 2d day of September, 1903, he gave to Smathers, the salesman of plaintiff, an order for chairs; that the plaintiff received the order, but never shipped the chairs, and declined to do so. Defendant insisted that this order, when given to Smathers, was a complete contract, binding plaintiff to ship the chairs, and the plaintiff breached it. The defendant contends that, after Smathers received his last order, chairs such as were specified in the order advanced in price, and he, on account of plaintiff not shipping the chairs on the last order, was damaged in the sum of $48.67; that being the difference between the price named in the order and the price when the order, according to his insistence, should have been filled. At the conclusion of defendant’s evidence the court on motion of the plaintiff, [633]*633excluded, all of the evidence offered by the defendant, and at the request of the plaintiff in writing charged the jury, if they believed the evidence, they should find a verdict for the plaintiff. The question 'for consideration, in connection with defendant’s contention, involves the authority of the salesman and its extent. The plaintiff’s contention in this respect was, and is, that Sniathers was only a soliciting agent, and that orders taken by him were never binding on it until they were approved and accepted by plaintiff. The witness Cates testified (and it was competent evidence under Bensberg v. Harris, 46 Mo. App. 404) that Smathers was plaintiff’s traveling salesman, with authority to take orders on commission subject to plaintiff’s approval. In the case of Simon & Son v. Johnson, 101 Ala. 368, 13 South. 491, one phase of the authority of a traveling salesman was considered and determined by this court; the precise question there determined being that a traveling salesman of merchandise, making sales by sample on a credit or for cash to be paid on receipt of the goods or the invoice of them, has no implied authority to collect the money agreed to be paid from the purchaser.
The precise question presented by this record has not been determined by this court. In the case of Clough v. Whitcomb, an order was taken for goods by a salesman having authority similar to that with which the salesman in this case was clothed. The trial court charged the jury: “If Clark (the salesman) made the contract with the defendant for the goods, and the plaintiff agreed to give Clark a commission on said goods, then Clark was Ms agent to sell said goods.” The appellate court, in holding the instruction bad, said: “A commission allowed to one who solicits orders upon sales effected through such orders does not constitute him or prove him to be an agent with authority to make absolute contracts of sale.” — Clough v. Whitcomb, 105 Mass. 482; Bensberg v. Harris, 46 Mo. App. 404; Finch v. Mansfield, 97 Mass. 89; Burbank v. McDuffee, 65 Me. 135. So in this instance Smathers “did not sell the goods, or even contract to sell them.' When the defend[634]*634ant had. completed his transaction with Smathers, there had been no binding contract- made, or any sale, absolute or conditional. The defendant could have counter- - manded. his order at- any time before the goods were shipped, and the- plaintiff could have refused to accept the order. Neither party had become bound by anything then done. . The order- of defendant was a mere proposal, to be accepted or not as the plaintiff might see fit, and he could have withdrawn it before its acceptance. The minds of the parties . had not met,- and, there had been no mutual assent or aggregatio mentium. Benj. on Sales, §§ 40, 70; Johnson v. Filkington, 39 Wis. 62; McKindly v. Dunham, 55 Wis. 515, 13 N. W. 485, 42 Am. Rep. 740; Bensberg v. Harris, 46 Mo. App. 404; Deane & Co. v. Everett, 90 Iowa, 242, 57 N. W. 874; McCormick Harvesting Co. v. Richardson, (Iowa) 56 N. W. 682; Stensgaard v. Smith, (Minn.) 44 N. W. 669, 19 Am. St. Rep. 205; Eskridge v. Glover, 5 Stew. & P. 264, 26 Am. Dec. 344. In the light of the elementary principles and -of the adjudged cases, it seems clear that the order or writing .in question does not constitute a contract, in the absence of acceptance or of any action-under it by the plaintiff. It does not purport to be a contract between the parties. “By it plaintiff was not :obligated to do anything" on its part. Plaintiff does not undertake, by the terms of the writing, to-ship the .chairs on the proposed terms. It is .no -more than a request by the salesman-that the plaintiff should ship to defendant the goods named. It may be said to be an order, but it lacks an essential element of a contract — -mutual assent. . Being only a request or order, which required acceptance by plaintiff to give it the force of a contract, it - folloAvs, as has already been stated; that it might be withdrawn or countermanded at any time prior to its being so accepted.” ■
. We do not say, however, that the acceptance must be a formal one. It is -insisted that, the. plaintiff having accepted and filled the previous order given to. the plaintiff’s salesman and having held the last order from some time in the eai’ly -part of September until November 12th, the plaintiff must be held to have accepted the or-[635]*635tier, and that it is estopped from urging non acceptance. Estoppels must he mutual, or they are not effectual. As we have seen, there is no time, from the time such an order is received until it is accepted, that the person giving the order cannot countermand it. It is plain that mere silence on the part of the plaintiff after receiving the order, without any act tending to show an acceptance, would not cut off the right of defendant to countermand. If not, then it cannot, with show of reason, he insisted that silence alone should constitute an acceptance of the order on the part of the plaintiff. Plaintiff said nothing about the order, and did nothing, with regard to it, until on the 12th of November, 1903, in reply to a letter of the defendant written on the 10th of that month, plaintiff wrote the defendant as follows: “Referring to your order of 9-2, we find it reads 10 plus 5 off'in 60 days, for ten doz. shipments, which we must in justice to ourselves decline, as this would not give us cost of production on this particular number, being our cheapest chair. Number 25 is worth to-day $7.25 per doz., as you will see by the enclosed price list. However, if you wish the chairs, we are willing to accept the order at $6.75 and $9.00 per dozen, subject to 10 per cent, for cash in 10 days, or 60 days net. Please advise your wishes in the matter, and oblige.” Having the right to decline acceptance of the order it would seem that it would -be a matter of no importance upon what ground the declination was placed, or whether any ground was stated, the letter accentuates the fact that plaintiff had not favorably considered the order, and this letter, written in answer to defendant’s, malees positive announcement to the defendant of that fact, and we can get no more than that out of it.
The court properly excluded the evidence of custom that was offered by the defendant. Without conceding that evidence of custom would be competent to supply mutuality, the plaintiff in this instance was domiciled in North Carolina, and it cannot be presumed that it had knowledge of the custom in Mobile, Ala.; and this on the face.of the evidence offered was the limit of the territory of the custom. Moreover, the custom offered [636]*636to be proved was: a custom amongst traveling salesmen, and did not embrace tbe principal of sucb salesman.— Simon & Son v. Johnson, 101 Ala. 368, 13 South. 491; German-American Insurance Co. v. Commercial Fire Insurance Co., 95 Ala. 469, 11 South. 117, 16 L. R. A. 291; Deane & Co. v. Everett, 90 Iowa, 242, 57 N. W. 874. Whether Smathers told defendant or not, at the time he took the order, that he was merely taking a bid from him, and he would have to send it on to the house for acceptance or rejection, was not competent evidence against the plaintiff.
It results from the foregoing considerations that no •error prejudicial to the defendant was committed by the trial court, and the judgment will be affirmed.
Affirmed.
Weakley, C. J., and Haralson and Simpson, JJ., concur.