Bosshardt & Wilson Co. v. Crescent Oil Co.

Opinion by Mb. Justice McCollum, A careful study of the evidence in the case has convinced us that there was no contractual relation between the litigants before July 31, 1898, and that their previous conversations in regard to a contract resulted and were merged in the offer contained in the defendant’s letter of that date. This letter expressed the willingness of the defendant to enter into a contract with the plaintiff on the terms stated in it, and extended to the latter for the term of sixty days the privilege of accepting or refusing the offer, on condition that if it was not accepted in writing “ on or before that time ” it should be void. The offer was solicited by the plaintiff after its representative had ascertained what amount of oil it could dispose of to its customers in France, and all that was required to establish a contract relation between the parties after the offer was made was a written acceptance of it. There is nothing in the offer which indicates that there was a consideration for the option it gave nor anything in the oral evidence which stamps the latter as irrevocable during the time allowed by the letter for the exercise of. it. The trip made by the company’s agents to France was at its expense and for the advancement of its interests. Neither the trip nor the expenditures incurred in making it had any connection with the option in question. The Atlantic Refining Company contended that its contract with the plaintiff expired on the 29th of March, 1893, and refused to deliver any oil under it after that time. The plaintiff’s contract with the Atlantic Company was therefore determined or broken by the other party to it, and its purchase of oil from the defendant in August, 1893, affords no support to its present contention. If there was a verbal agreement between the litigants like the contract offered by the defendant to the plaintiff on the 31st of July, there was no occasion for the offer and it is not [120] satisfactorily accounted for. The effect of the offer and the option connected with it would be to release the plaintiff from liability to the defendant on the verbal agreement, while according to the contention of the former the latter remains bound by it. But we need not consider the consequences of a condition which has no existence, or of the success of a contention unauthorized, by the evidence. There being no consideration for the offer in this case the defendant had a clear right to withdraw it at any time before there was an acceptance of it. The learned counsel for the plaintiff contend that there was a consideration for it, but concede that if there was neither a consideration for nor an acceptance of it, the right of the defendant to withdraw it is plain and indisputable. ' By the terms of the offer the defendant could not be held to it without an acceptance of it in writing. It is admitted that there was no written acceptance of the offer before it was withdrawn. But it is claimed that there was a verbal acceptance of it on the 19th of September, six days before it was withdrawn, and that this acceptance dispensed with the written acceptance stipulated for in the letter of July 31st. While we are not prepared to assent to this claim we do not deem it necessary to discuss it, because in the view we have taken of the case a written acceptance of the offer would at most have created an executory contract, the enforcement of which by the plaintiff could be successfully resisted by the defendant on the ground that the former was not authorized by its charter to enter into it. This is one of the defenses made to the action, and it would have to be sustained even though the alleged verbal acceptance had the effect claimed for it. We conclude that the learned court below did not err in refusing to take off the nonsuit. Judgment affirmed.