J. Thompson & Sons Manufacturing Co. v. Perkins & Son

Granger, J. 1 2 I. From appellant’s argument it appears that the court below, in ruling on the demurrer, took the view that the only acts of approval of the order pleaded are the card of November 17,1892, and the shipment of the implements. Until the order was accepted, there was no contract. The acceptance must have been in such a way that both parties could know the contract was complete. No mere mental acceptance would be sufficient, and we do not understand appellant to claim, that it would. The order was conditioned, and, before acceptance, defendants had the right to countermand it. Benj. Sales (sixth Ed.), section 41. It seems to us that the petition pleads no other acceptance before the countermanding order than the card, or letter, under date of November 17,1892. No pleader, intending more, would have used the language as it is there used in connection with the card. If the construction is doubtful, after giving to the language a reasonable intendment, it should be resolved against the pleader. - The acceptance pleaded is in a single sentence, and the language employed, with the punctuation, indicates that the pleader intended to state the fact and manner of acceptance. The law requires that the acceptance must be communicated. 21 Am. & Eng. Enc. Law, 455, and cases there cited. We assume that the pleader undertook to plead a legal acceptance, and to this end made the averment as to the card being sent to show the acceptance. The proposition is not, to us, a doubtful one, that the averment means that the order was accepted by sending the communication. In this court appellant does not contend that the communication is sufficient as an acceptance, and we need not consider the question. The shipment was .made after defendants [610] had exercised their right to countermand the order, and, of course, could have no effect to bind the defendants. The judgment is affirmed.