Ferguson v. West Coast Shingle Co.

Wood, J., (after stating the facts). The judgment should have been in favor of appellants for two reasons: 1. The undisputed evidence showed a custom “for the seller to notify the buyer by wire of the acceptance of his order,” where the order, as in the present case, is made by wire. Appellee did not comply with this custom, and appellant, not knowing whether his order would be filled or not, after waiting four •days, cancelled same. Under this custom there was no completed contract between appellants and appellee for the purchase of the shingles. Appellee did not notify appellants by wire of the acceptance of the latter’s order, and appellants had no notice that their order by wire had been accepted until they received a letter from appellee containing invoices a week or ten days after the order had .been telegraphed. Appellants had the right to rely upon the custom and to cancel their order after waiting four days. For, as a matter of law, appellants were warranted in treating a delay of four days to answer the telegram by like method as unreasonable. The nature of the business, the manner in which it was conducted when orders were made by wire, and the usage of the trade, as shown by the evidence, made the delay of appellee to answer by wire unreasonable. Kempner v. Cohn. 47 Ark. 519. 2. The telegram constituted but a single order for shingles although it specified two cars each for separate destinations. The appellee had no right to ignore the terms of the order and send appellants an entirely different car .from that contained in the order. By so doing appellee failed to accept the contract proposed by appellants. Consequently, there was no meeting of the minds of the parties upon the cars that were diverted to appellants, and they were not liable. The contract proposed by appellants was single and indivisible. Union Trust Co. v. Weber-Seely Hdw. Co., 73 Ark. 584; Sutherland Med. Co. v. Baltimore, 81 Ark. 229; Wood v. Kelsey, 90 Ark. 272. Any material variation from it as to the specific quantity of shingles ordered justified appellants in rejecting the whole quantity tendered and shipped as a compliance with the order. See Rommel v. Wingate, 103 Mass. 327 and cases cited; Perry v. Mount Hope Iron Co., 15 Atl. Rep. 87; Hunt on Tender, § 216. The testimony on behalf of appellants tended to show that' they would not have made the order for one car and not the other. The witness said: “It was important for a man to get the car containing the number of shingles he orders. If he did not get the car he ordered, it would be very 'hard for him to tell exactly how his stock is going to be, and he certainly uses discretionary power in the amount he wants, or they might send any oar.” The court instructed the jury on behalf of appellants in accord with the doctrine here announced, but they ignored the instructions. The verdict for the reasons stated was contrary to the evidence and the law. The judgment .based upon such erroneous verdict must therefore be reversed, and the cause is dismissed. .