T. C. May Co. v. Menzies Shoe Co.

Adams, J. The definition of a contract as an agreement to which the law attaches obligation implies, among other essential elements, the mutual assent of the parties, which generally results from an offer on the one side and acceptance on the other. The offer, when communicated, is a mere proposal to enter into the agreement, and must be accepted before it can become a binding promise; but when it is communicated, and shows an intent to assume liability, and is understood and accepted by the party to whom it is made, it becomes at once equally binding upon the promissor and the promissee. 1 Page on Contracts (2 ed.), sec. 74 ei seq.j 1 Elliott on Contracts, sec. 27 et seq. Such acceptance may be manifested by words or conduct showing that the offeree means to accept; for, while it is generally held that the intention to accept is a necessary element of acceptance, the question of intent may usually be resolved by what the offeree did or said. As a general rule, his mere silence will not amount to assent; but if he declines to speak when speech is admonished at the peril of an inference from silence, his silence may justify an inference that he admits the truth of the circumstance relied on or asserted. 1 Page, supra, sec. 160; 1 Elliott, supra, sec. 48; Royal Ins. Co. v. Beatty, 119 Pa. St., 9. In the instant case the record presents two questions: (1) 'Whether the plaintiff made the defendant an offer of purchase, and if he did, (2) whether the offer was accepted by the defendant. The plaintiff admits that it gave the defendant’s traveling salesman the order referred to, but avers that it was not conditional upon acceptance by the defendant. In this conclusion we cannot concur. In our opinion the salesman did not assume to make an absolute sale of the goods; on the contrary, he represented himself as a traveling salesman, and was dealt with as such by the plaintiff. ' The term “traveling salesman” is generally accepted in the sense of a ¡salesman who takes *153 or solicits orders for goods and forwards tbem to bis principal for approval or rejection. 19 C. J., 790. Tbe plaintiff evidently recognized sucb limitation of tbe salesman’s authority,, for A. E. May testified tbat be did not tbinb tbe salesman could bind bis company to an acceptance of tbe order. We are therefore chiefly concerned with tbe inquiry whether it is permissible to deduce from tbe evidence, construed in tbe light most favorable to tbe plaintiff, tbe inference tbat tbe defendant accepted tbe plaintiff’s order. If sucb conclusion may reasonably be inferred, tbe judgment of nonsuit cannot be sustained. Sikes v. Ins. Co., 144 N. C., 626; McCaskill v. Walker, 145 N. C., 252; Cotton v. R. R., 149 N. C., 227; Newby v. Realty Co., 182 N. C., 41; Weathers v. Baldwin, 183 N. C., 276. Inspection of tbe record and examination of tbe briefs filed by counsel lead to tbe conclusion tbat the controversy as to tbe alleged acceptance should have been submitted to tbe jury. There is evidence tending to show tbat on 6 February tbe plaintiff signed and delivered to tbe defendant’s salesman two orders for shoes, one of which was to be filled soon thereafter and tbe other 25 July; tbat tbe defendant acknowledged tbe receipt of these orders, and informed tbe plaintiff tbat they should receive prompt attention; tbat tbe custom of tbe trade at tbat time required of tbe defendant acceptance or rejection of tbe orders within eight or ten days; tbat tbe shoes described in tbe first order were shipped in tbe month of February, and tbat there was no further communication concerning tbe order until 27 June, when tbe defendant wrote tbe plaintiff tbat it was “receiving tbe defendant’s preferred attention,” and requested additional information as to tbe plaintiff’s financial condition; tbat subsequent correspondence took place between tbem resulting in tbe defendant’s cancellation of tbe order. It is unnecessary to recapitulate tbe contentions of tbe parties for tbe reason tbat tbe evidence, in our opinion, is of sufficient probative force to justify its submission to tbe jury on tbe question of tbe defendant’s acceptance of tbe order. Of course we express no opinion on tbe merits. Tbe judgment of nonsuit must be set aside, and tbe controversy submitted to tbe determination of another jury. New trial.