Robeson v. Pels

Opinion by Mr. Justice Mitchell, The question in the case is, whether or not there was a contract between the parties, and that depends on whether a qualified acceptance by defendant of plaintiff’s offer to sell was accepted by plaintiff and defendant notified in time. That was a question of fact and as such was properly left to the jury. [404] Defendant’s cabled message was received by plaintiff about eight o’clock on Saturday morning and after correction of two misspelled words in the cipher, was again received about noon. The message requested acceptance by telegram, but no answer was sent by plaintiff until Monday, about three P. M. Defendant contended that this was too late, and in support of his refusal to accept, gave evidence of a custom both in Philadelphia and in Hamburg, where he resides, that in dealings of the kind by cablegram, answers must be sent within twenty-four hours. The judge charged that if the jury found “ a certain, definite, uniform, reasonable custom that that should be done, then that custom was binding.” This was entirely correct. He further charged that if the jury should not find the custom proved, they should then determine whether the answer was within a reasonable time under all the circumstances of the case, directing their attention to the fact that while a message by telegram in the nature of things calls for a speedier answer than one by letter, yet even in such transactions the recipient has a right to time to think and to decide. On this branch of the case the jury had before them evidence that.the telegraph office was open all of Saturday afternoon and evening, and on Sunday, and that business in Hamburg was done on Sunday. On the other hand plaintiff claimed that Saturday in Pennsylvania was a half holiday and therefore he had all of Monday to answer. On this point the judge charged: “If you think that this plaintiff did not make such a prompt reply as was reasonable -under the circumstances, then he cannot claim that there was any contract, and he cannot claim, of course, that there was a breach of any contract by the defendant. I do not think that the circumstance that Saturday afternoon was a half holiday has anything to do with the question, one way or the other. The plaintiff got this telegram shortly after one o’clock, and he had the rest of that day and that evening to make a reply, and I think it is a very fair question whether, dealing as they were with reference to an article which was shifting in price and at that time was rising in price, the plaintiff ought not to have made his reply during that day, aside from any question as to whether ordinarily twenty-four hours or forty-eight hours might be allowed for [405] sending such a message. The whole question is for you, however.” This part of the charge is particularly assigned for error, as contrary to the Act of June 28, 1897, P. L. 188, regulating holidays. But the act is by no means so broad as claimed. The holidays created by it are permissive only, and its'operative force is limited to transactions regarding payment, protest, etc., of commercial paper. The enacting words are, that certain days “shall, for all purposes whatever as regards the presenting for payment or acceptance, and as regards the protesting and giving notice of the dishonor of bills of exchange, checks, drafts and promissory notes, made after the passage of this act, be treated and considered as the first day of the week, commonly called Sunday, and as public holidays and half holidays,” etc. ISxpressio unius exclusio est alterius. It is true that in the same section it is also, “ provided, further, that in construing this section, every Saturday designated a half holiday shall until twelve o’clock noon be deemed a secular or business day; and the days and half days aforesaid, so designated as holidays and half holidays shall be considered as public holidays and half holidays for all purposes whatsoever as regards the transaction of business.” But this is manifestly a reiteration from superabundant caution, of the intent to limit the holiday portion of Saturday to the afternoon, for it is immediately followed by a further proviso that nothing in the act shall be construed to prevent or invalidate any legal process “ on any of tbe holidays or half holidays herein designated as holidays, nor to prevent any bank from keeping its doors open or transacting its business on any of tbe said Saturday afternoons if, by a vote of its directors, it shall elect to do so.” This last clause is fully indicative of the purpose of the whole act, to relieve hanks and others from the strict requirements of commercial law, as to demand payment, etc., of negotiable paper, if they choose to avail themselves of the permission, hut not to make it obligatory on them to do so, at least as to Saturday afternoons. The two points on which the existence of a contract turned, were first, whether tliere was a custom binding on plaintiff to answer in twenty-four hours, and secondly, if there was no such custom proved, then whether on general business princi [406] pies under all the circumstances of the case, he had answered within a reasonable time. Both were questions of fact, and both were properly submitted to the jury. The fourth assignment of error that the verdict was against the weight of the evidence is one that we have repeatedly said we only consider in exceptional cases. The remedy for a wrong verdict is in the court where it was rendered. Judgment affirmed.