Maclay v. Harvey

Mr. Justice Scholfield delivered the opinion of the Court: Appellant brought assumpsit against appellee, in the court below, on an alleged contract whereby the latter employed the former to take charge of the millinery department of his store in Monmouth, in this State, for the season commencing in April and ending in July, in the year 1876, and to pay her therefor $15 per week. The judgment was in favor of appellee, and appellant now assigns numerous errors as grounds for its reversal. In our opinion, the case may be properly disposed of by the consideration of a single question. Appellant’s right of recovery is based entirely upon an alleged special contract, and unless there was such a contract, the judgment below is right, however erroneous may have been the rulings under which it was obtained. After some preliminary correspondence, which is not before us, appellant, who was then residing in Peoria, received from appellee the following, by mail: “Monmouth, Ill., March 9, 1876. Miss L. Maclay, Peoria, III. :—I have been trying to find your address for some time, and was informed last evening that you were in Peoria. I write to inquire if you intend to work at millinery this season, and if you have made any arrangements or not. If you have not, can you take charge of my stock this season, and if we can agree I would want you for a permanent trimmer. Please notify me by return mail, and terms, and we can confer further. Yours in haste, John Harvey. Formerly Jno. Harvey & Co., when you trimmed for me.” Appellant’s reply to this is not before us. She says she stated her terms in it, and thereafter appellee wrote her the following, which she also received by mail: “ Monmouth, Ill., March 21, 1876. Miss L. Maclay, Peoria, III. :—Your favor was received in due time, and contents noted. You spoke of wages at $15 per week and fare one way. You will want to go to Chicago I presume, and trim a week or ten days. ' I would like for you to trim at H. W. Wetherell’s or at Keith Bros. I will give you $15 per week and pay your fare from Chicago to Monmouth, and pay you the above wages for your actual time here in the house at that rate per season. I presume that the wholesale men will allow you for your time in the house. You will confer a favor by giving me your answer by return mail. Yours, John Harvey.” Appellant says she received this in the afternoon, and replied the next day by postal card, addressed to appellee, at Monmouth, as follows: “ Peoria, March 23. Mr. Harvey :—Yours was promptly received, and I will go up to Chicago next week, and when my services are required you will let me know. Very respectfully, L. Maclay.” Appellant did not place this in the post-office herself, but she says she gave it to a boy who did errands about the house of her sister, with whom she was then staying, directing him to place it in the office. The postmark on the card, which is shown to be always placed on mail matter the same day it is put in the office, shows that the card was not mailed until the 25th of March. Appellee receiving no reply from appellant, on Monday morning, March 27, went to Peoria and endeavored to engage another milliner, and failing in this, endeavored to find appellant, but was unable to do so, and then returned to Monmouth, when he received appellant’s postal card, which had come to the office there during his absence. On Wednesday night, of the same .week, appellee left Monmouth for Chicago, arriving at the last named place on the following morning, Thursday, March 30. Finding that appellant was neither at ICeith Bros, nor at Wetherell’s, he proceeded to employ another .milliner, and on the same day, and 'before leaving Chicago, wrote and mailed a letter directed to appellant’s address at Peoria, notifying her of that fact, but this letter, in consequence of appellant’s absence from Peoria, she did not receive for some time afterwards. The millinery season commences from the 5th to the 10th of April and ends from the 20th of June to the 4th of July, as shown by the evidence. Appellee had not laid in his spring stock when he was corresponding with appellant, and he started to Hew York, from Chicago, for that purpose, on the evening of the day on which he addressed the letter to appellant notifying appellant of his employment of another milliner, the evening of the 30th of March. Appellant says she left Peoria for Chicago on Friday, which must have been the 31st of March. On arriving at Chicago, she went to Wetherell’s, and, failing to get employment there, did not go to Keith Bros., but went to another house in the same line of business, where she remained some days, and on the 8th of April she notified appellee, by letter, that she was sufficiently informed as to the “new ideas of trimming” and was ready to enter his service. Appellee replied to this, reciting the disappointments he claimed to have met with on her account, and again notifying her that he did not require her services. If a contract "was consummated between the parties, it was by the mailing of appellant’s postal card on the 25th of March. Appellee’s letter of the 21st can not be regarded as the consummation of a contract, because it restates the terms with some, variation, though it may be but slight, and requires an acceptance upon the_ terms thus stated. This, until unequivocally accepted, wras only a mere proposition or offer. Hough v. Brown, 19 N. Y. (5 Smith) Ill. It was said by the Lord Chancellor, in Dunlop v. Higgins, 1st House of Lord’s cases, at page 387: “ Where an individual makes an offer by post, stipulating for, or by the nature of the business having the right to expect, an answer by return of post, the offer can only endure for a limited time, and the making of it is accompanied by an implied stipulation that the answer shall be sent by return of post. If that implied stipulation is not satisfied, the person-making the offer is released from it. When a person seeks to acquire a right, he is bound to act with a degree of strictness, such as may not be required where he is only endeavoring to excuse himself from a liability.” This is regarded as a leading case on the question of acceptance of contract by letter, and the language quoted we regard as a clear and accurate statement of the law, as applicable to the present case. It is clear here, that the nature of the business demanded a prompt answer, and the words “you will confer a favor by giving me your answer by return mail” do, in effect, “stipulate” for - an answer by return mail. Taylor v. Rennie et al. 35 Barb. 272. The evidence shows that there were two daily mails between Peoria and Monmouth—one arriving at Monmouth at 11 o’clock A. M., and the other at 6 o’clock P. M., and it did not require more than one day’s time between the points. Appellee’s letter to appellant making the offer, it will be remembered, bears date March 21st. Assuming the date of appellant’s postal card (which, she says, was written on the morning after she received appellee’s letter,) to be correct, she received appellant’s letter on the evening of the 22d. Appellee was, therefore, entitled to expect a reply mailed on the 23d, which he ought to have received on that day, or, at farthest, by the morning of the 24th; but appellant’s reply was not mailed until the 25th. It does not relieve appellant of fault that she gave the postal card to a boy on the 23d, to have him mail it. Her duty was not to place an answer in private hands, but in the post-office. The boy was her agent, not that of appellee, and his negligence in mailing the postal card was her negligence. The question of whether it would not have equally well subserved appellee’s object had he treated the postal card of appellant as the consummation of a contract, is irrelevant. Appellant seeks to recover upon the strict letter of a special contract, and it is, therefore, incumbent on her to prove such contract. It is required of her, as we have seen, to prove an acceptance of appellee’s offer within the time to which it was limited—that is to say, by the placing in the post-office of an answer unequivocally accepting the offer in time for the return mail, which she did not do. Appellee was, thereafter, under no obligation to regard the contract as closed. He might, it is true, have done so, but he was not legally bound in that respect, nor was he legally bound to notify appellant that her acceptance had not been signified within the time to which his offer was limited. She is legally chargeable with knowledge that her acceptance was not in time, and in order to fix a liability thereby upon appellee, it was incumbent upon her, before assuming that appellee waived this objection, to ascertain that he in fact did so. Appellee was led, by the postal card of appellant, to believe that he would, when he arrived at Chicago on Thursday, find her either at Wetherell’s or Keith Bros. Had he done so, it Avas his intention to treat the contract as closed; but she Avas not there, and this intention was not acted upon, and so is to be considered as if itvhad never existed. Appellee, not finding appellant at Wetherell’s or Keith Bros., as she had led him to believe he Avould, had no reason to assume that she aauis, in good faith, acting upon the assumption that her postal card had closed the contract, and he can not, therefore, be held estopped from denying that it was not posted in time. In A7ieAV of the lateness of the season, and the danger to appellee’s business from delays of all which appellant was aware, it can not be said appellee acted Avith undue haste in engaging another milliner. The judgment is affirmed. Judgment affirmed.