Jeanette Bros. v. Hovey & Co.

Hoee, J. According to the evidence and contentions of both of the parties, the plaintiff had a reasonable time in which to accept defendant’s offer, and it is held in this jurisdiction that when men of fair minds can come to differing conclusions upon it, the question of reasonable time is for the jury. Holden v. Royall, 169 N. C., 676-678; Clause v. Lee, 140 N. C., 552; Blalock v. Clark, 137 N. C., 140. In application of the principle, and under a proper charge, the jury have necessarily determined that defendant’s offer continued to be an open one, and this being true, the further instruction of his Honor is in full accord with the authorities on the subject, that if plaintiff mailed his letter of acceptance at Elizabeth City on 29 November, enclosing check, and before notice of withdrawal received, the contract was “consummated,” though defendants had mailed such notice at Mars Hill on the day previous. Patrick v. Bowman, 149 U. S., 411; Tayloe, Appellant, v. Merchant Fire *143 Ins. Co., 50 U. S., 390; Brayer v. Shaw, 198 Mass., 198; Wheat et al. v. Cross, 31 Md., 99; American notes to Benjamin on Sales (7 ed.), p. 78; Byrnes v. Van Trenhoven, 5tb L. Rep., 1879-1880, C. P. D., p. 344; Anson on Contracts, sec. 51; 1st Paige on Contracts (2 ed.), sec. 134. Tne precise case is presented in Patrick v. Bowman, supra, where it was held, among other things: When an offer is made and accepted by the j)Osting of a letter of acceptance before notice of withdrawal is received, the contract is not' impaired by the fact that a revocation had been mailed before the'letter of acceptance. And in Wheat, etc. v. Cross, supra, in facts not dissimilar to those presented here, it was held: “That until notice of withdrawal actually reached the vendor, the offer was continuing and the acceptance thereof by him completed the contract.” And stating the rule generally prevailing on the subject in Paige on Contracts (2 ed.), sec. 134, it is said: “Bevocation of an offer which has been made to some specific individual must in the absence of a statute be communicated to the offeree before the offeree has accepted such offer in order that such revocation may have any legal effect. A revocation sent by mail or telegraph is ineffectual as a general rule until received by the offeree.” And the issue on damages has also been decided under approved principles : The difference between the contract price and market value at the time when and place where the goods should have been delivered by the terms of the contract. Richardson v. Woodruff, 178 N. C., 52 (plaintiff’s appeal); Tillinghast v. Cotton Mills, 143 N. C., 268; Hosiery Mills v. Cotton Mills, 140 N. C., 452. True, in certain aspects of the case the jury, on this issue, was allowed to consider a loss of profits on resale in the Elizabeth City market, provided the pertinent conditions were known to vendors, and plaintiffs were unable to procure other potatoes for resale in the usual course of their business, and there seems to be facts in evidence to justify the submission of that view under the principles approved in Gardner v. Tel. Co., 171 N. C., 404, and other like cases. But the damages were clearly awarded by the jury under the lower estimate and by the difference in the contract price and market value as heretofore stated. As to the claim of the intervener, there were facts in evidence permitting the inference that the Mars Hill Bank took and held the draft and its proceeds as collecting agent of defendants and not as owner, and this view being accepted by the jury, its claim has been properly disallowed. Worth Co. v. Feed Co., 172 N. C., 335; Davis v. Lumber Co., 130 N. C., 174. We find no error to appellant’s prejudice, and the judgment on the verdict is affirmed. No error.