Crook v. Cowan

Bead®, J\ If one writes to another, who has not offered his property for sale, proposing to buy, the letter is of course nothing but an offer, and is of no force until the other answers and accepts the offer; then the contract is made. But if one holds his property out for sale, naming the terms, and another accepts the terms, the contract is complete ; or, if one bids at an auction, and the hammer falls, the contract is complete; or, if one advertises, offering a reward for something to be done, as soon as the thing is done the contract is complete, and the reward is due. So, in our case, the plaintiff held himself out as a carpet manufacturer and vender, and offered his carpets for sale, and invited purchases ; and when the defendant sent him the unconditional order for carpets, that was an acceptance of his offer, and the bargain was struck, and the moment that the carpets were delivered to the Express, the agent designated by the defendant to receive and transport them and collect the bill, the delivery was made, and the property passed to the defendant. But, if that were not so, our case is stronger than that. Consider the case as if the first offer was made by the defendant to the plaintiff. The defendant knowing that the plaintiff was a carpet vender, sent him an unconditional order for carpets, specifying the Express as the agent to receive and transport them, and to collect the bill, and the order was filled to the letter. Thereby, the offer was accepted, the property in the carpets passed to the defendant, [747] and lie became liable for the price, as for goods’ sold and delivered. The order was an offer, the filling the order was an acceptance; and an offer and an acceptance is the common definition of a contract. Tbe defence is pnt npon this ground: the defendant’s letter to plaintiff was only an offer, ’there was no contract until the plaintiff accepted it and notified the defendant; and the notice ought to have been by mail, within a reasonable time. The plaintiff says, that he did assent immediately upon the receipt of the order, and forwarded the carpets as soon as he could have them made up, which was within a reasonable time — seven days, and that this was all he had to do. The point of divergence between the plaintiff and defendant is, that the defendant says, the plaintiff ought to have notified him by mail that he had accepted the offer, and forwarded the goods; that merely filling the order, although in the exact terms thereof, was not an acceptance, without notice. The propriety of giving notice by mail, must depend a good deal lipón the circumstances of each particular case; — as, if the order requires it, or, if the order is not sufficiently specific, and leaves something further to be arranged, or, if considerable time- must pass in the manufacture of the article, or, if the route or means of transportation is not known, or .the voyage long and dangerous, and the like. But if an * offer and an acceptance — an unconditional and specific order, and an exact fulfillment, as in this case, does not complete the contract, how would it be possible to complete a contract by mail ? A sends an unconditional order to B, and, instead of B’s filling the order, he writes back that he accepts the order and will fill it, but in the meantime, A may have changed his mind, and lest he has, he must write back to B and so on, for ever. Adams v. Lindsell, 1 B & Ald. 681, is the leadiug English case, illustrating, and repudiating, [748] this circumlocution; and that case lias been followed ever since both in England and America, as is said in 1 Parsons on Contracts, note p, page 483. In that case, it was said, speaking of tbe above rule, “ If it were not so, no contract could ever be completed by post. Eor if tbe defendant was not bound by his offer, when accepted by tbe plaintiff, until tbe answer was received, then tbe plaintiff ought not to be bound until after be bad received tbe notification that tbe defendant bad received bis answer and assented to it. And so it might go on ad infinitum. We admit that the rule, that filling an order completes tbe contract, is confined to unconditional and specific orders. And, if tbe purchaser thinks proper, be can make ¡his order as guarded as be pleases. He may say, “I want such goods, — can you furnish them ? If so, at what price, and within what time ? Inform me by return mail. I will pay if tbe goods arrive safe, — otherwise not,” — and tbe like. Then be will not be liable unless tbe terms are strictly complied with. In tbe case before us, tbe order was unconditional and specific, and was complied with to tbe letter. Tbe defendant did not ask tbe plaintiff to inform him whether be would fill tbe order. He bad no doubt about it. It was tbe plaintiff’s business to fill such orders, and tbe defendant bad confidence in him. So far from requiring tbe plaintiff to notify him by mail, be impliedly informed him that be need not do so : Send tbe goods by Express, O. O. D., without more say; and send tbe bib by Express fpr collection; or, if you are afraid to trust me, then, and in that case only, you may write to me and I will send tbe money, before you ship tbe goods, — is, substantially, what tbe defendant said in bis order to tbe plaintiff. There was no use in informing tbe defendant by mail of tbe shipment of tbe goods, because tbe Express is as speedy as tbe mail; and there is certainly no [749] magic in sending by mail. And sending the goods is the best notification. The defendant also complains that the plaintiff did not answer his telegram. The answer is, that neither the mail nor the telegraph had-been designated as the means of communication, but the Express. And it was the defendant’s misfortune, if not his fault, to go elsewhere than to the place designated, for information. His duty ended when he deliv ered the goods to the agent designated by the defendant, the Express, with the bill for the price to collect. The goods were at their destination — the Express office — when the defendant sent his telegram. He did not go to the Express office at all, and offers no explanation why be did not, but left the plaintiff to infer, as he seems to have done, that his purpose was to avoid the contract.