Metzler v. Harry Kaufman Co.

Mr. Chief Justice Shepard delivered the opinion of the Court: Our statute of frauds provides that no contract for merchandise “for the price of $50 or upward shall be allowed to be good” unless some note or memorandum in writing of the said bargain be made and signed by the parties to be charged, or their agent thereunto lawfully authorized. Code, sec. 1119 [31 Stat. at L. 1368, chap. 85J]. Treating the two sheets of orders in this case as one memorandum signed by the soliciting salesman, Goetz, it is plain from the evidence, and the court rightly so charged, that it was not such a memorandum of sale as satisfied the requirement of the statute. It was not signed by the defendant, nor was Goetz his agent thereunto lawfully authorized. He was but a soliciting agent to take orders for goods and transmit the same to the defendant for his approval and acceptance. It was not actually signed by the plaintiff, and therefore, had the defendant accepted it by immediate communication to the plaintiff, the latter could only have been bound by the contract upon the theory, either that Goetz had been made his agent for the purpose of subscribing and transmitting the order, or that authorizing his name to be inserted in the body of the order was equivalent to actually signing it. Unless he [440] was so bound, the defendant’s acceptance woidd not have completed a contract between them. Without deciding this question, and assuming that the order may be considered as an offer by the plaintiff to purchase the goods described therein, then, as the court also charged, plaintiff could only recover upon the theory that the defendant had accepted the order. This was undoubtedly correct, for a mere offer to purchase or sell, not accepted by the party to whom it is made, does not constitute a contract. The question to he determined is, What constitutes such an acceptance of an offer as to make it a contract ? Passing by the question whether anything less than an acceptance in writing would satisfy the statute, is it sufficient, as the court instructed the jury, that the defendant had actually made up his mind to accept the offer, although no communication of assent or acceptance was made ? There was no direct evidence that the defendant had made up his mind to accept the offer, and the jury were told that they might infer this mental assent from his silence during the time which elapsed between the receipt of the order and his letter of February 13, 1907. Without regard -t-a the question whether the acceptance must be in writing in order to complete the contract, it must, in all cases, be an affirmative act. Silence does not amount to acceptance. “Mental assent,” as it has been termed, — that is to say, coming to a determination in one’s mind to accept, — without communicating that assent, is insufficient. Benjamin, Sales, Bennett’s Notes, sec. 39, p. 43; 1 Page, Contr. p. 72, ¶ 43; Felthouse v. Bindley, 11 C. B. N. S. 869; Re National Sav. Bank Asso. L. R. 4 Eq. 9, 12; Jenness v. Mt. Hope Iron Co. 53 Me. 20, 23; White v. Corlies, 46 N. Y. 467, 469; Bowen v. McCarthy, 85 Mich. 26, 48 N. W. 155; Trounstine v. Sellers, 35 Kan. 447, 454, 11 Pac. 441; Edge Moor Bridge Works v. Bristol County, 170 Mass. 528, 49 N. E. 918; Prescott v. Jones, 69 N. H. 305, 306, 41 Atl. 352; Raysor v. Berkeley County R. & Lumber Co. 26 S. C. 610, 2 S. E. 119; Royal Ins. Co. v. Beatty, 119 Pa. 6, 9, 44 Am. St. Rep. 622, 12 Atl. 607; Stockton v. Firemen’s Ins. Co. 33 La. Ann. 577. In Jenness v. Mt. Hope Iron Co. supra, there was an order [441] for merchandise and correspondence relating to a modification of the same. There was no express acceptance of the modified order, bnt from the correspondence the plaintiff had strong ground for a belief that his order Avould be filled. Referring to this, the court said: “It is highly probable that when the defendants received the plaintiff’s order of October 2? they intended to fill it; otherwise they should have notified him, and not by their silence left him to infer that the nails Avould be forwarded, Avhen they had no intention of doing it. And if such an intention would be sufficient to complete the contract, and render it binding upon the parties, we might, perhaps, feel justified in inferring it from the defendants’ silence and other facts testified to by the plaintiff. But we are not satisfied that such an intention, locked up in the breast of a party, and not communicated to the other, is sufficient in any case to constitute such an acceptance of a proposition as to create a binding contract. We think it Avould not.” No authority opposed to the doctrine has been cited on the appellee’s brief, and none has been been discovered by us. We are of the opinion that the court erred in the charge to the jury. We should have directed a verdict for the defendant as requested. Having held that there Avas no contract betAveen the parties, there is no occasion to consider the errors assigned in respect of the measure of damages for its breach. The judgment will be reversed, with costs, and the cause remanded for further proceedings not inconsistent with this opinion. Reversed,