Smith v. Wetherell

Bailey, P. J. The determining question in this case is, did the plaintiff’s letter to the defendants, and the reply of the latter thereto, constitute a contract between said parties? The plaintiff’s letter was in the nature of a proposition to the' defendants, which could only be binding on them upon their acceptance of it according to its terms. An acceptance, to be good, must, in every respect, meet and correspond with the offer, neither falling within nor going beyond the terms proposed, but exactly meeting them at all points, and closing with them just as they stand. Potts v. Whitehead, 23 Hew Jersey, Eq. 572. But a proposal to accept, or an acceptance of an offer, on terms varying from those proposed, amounts to a rejection of the offer and a substitution in its place of a counter proposition, which cannot become a contract until assented to by the first proposer. Fox v. Turner, 1 Bradwell, 153. It is plain that the acceptance contained in the defendants’ reply is essentially variant from the proposition made in the plaintiff’s letter. The reply adds to the terms of the proposition the following, viz: that the lumber when sold should be charged to the defendants. The defendants had an undoubted right to propose this modification to the plaintiff’s offer, and such modification not being assented to by the plaintiff, no contract was consummated. Again, the proposition was that defendants should enter into the contract as guarantors of Bennett. By their reply the defendants consented to become bound, not as guarantors, but as principal debtors. They authorized the plaintiff to charge the lumber directly to them, and in that manner only did they consent to become liable to pay for it. The contract of a guarantor and that of a principal are essentially different in their nature, and involve entirely dissimilar rights and liabilities. If the plaintiff desired to hold the defendants to the particular liability they offered to assume, he should have assented to their counter-proposition. This he failed to do. But even if the contract could be regarded as consummated and binding, the evidence shows that its terms were not complied with by the plaintiff. The lumber was not charged to the defendants but to Bennett. It cannot be said that the matter of charging it against the defendants in the plaintiff’s books is immaterial. It is true, the reasons why the defendants chose to limit their liability to this particular form are not disclosed. They may have had in view such information of the several sales of lumber as they would be likely to derive from such periodical statements of accounts between the plaintiff and them, as is customary among business men. They may have anticipated greater facility in obtaining indemnity against their liability. At any rate, they chose to assume the liability, as they had an undoubted right to do, upon their own terms, and those terms not being met, it cannot be enforced against them. We are of the opinion that no error was committed by the court in giving the instruction complained of. There was no question for the jury, and it was therefore competent for the court to instruct them to find a verdict for the defendants. There being no error in the record, the judgment must be affirmed Judgment affirmed.