Peck v. Freese

Long, J. Defendants are copartners, doing business as Ereese & Rohde. On March 22, 1892, they gave an order in writing on plaintiff, who resides at Cortland, N. Y., for a cash register. The order was procured by plaintiff’s agent, O. W. Port, at Paw Paw, this State, and was for a register similar to the sample shown defendants, and for which they agreed to pay $45. The register, by the terms of the order, was to be delivered f. o. b. at Cortland, N. Y. It was stated in the order: “ This order is given subject to your approval, and it is expressly agreed that it shall not be countermanded.” The defendants on the trial contended that the contract was never completed, for the reasons: 1. That the order was countermanded before acceptance. [323] 2. That there was no delivery of the register. 3: That the register was unfit' for the purpose for which it was purchased. These questions were submitted to the jury, and they found in accordance with defendants claim. Plaintiff claims, however, that the letter which defendants contend amounted to a countermand cannot be so construed. It is as follows: “Paw Paw, Mich., March 24, 1892. “A. E. Peck, “Dear Sir: You received an order from us for one Peck Eegister from your man, O. W. Fort. Please hold same until further notice. “Yours respt., Freese & Eohde. “C. N. R." The court was not in error in construing this as a countermand of the order. Plaintiff claims, further, that he had accepted the order before receiving the notice of countermand. He says that on March 26 he sent a postal-card to defendants, saying that he was pleased to receive the order, and that the register would be shipped as soon as possible. It is denied that this postal-card was ever received, and defendants say the first they heard from plaintiff after the countermand was that he “ would send the register just the same.55 The question whether the notice of countermand was sent and received before acceptance of the order was submitted to the jury under the facts shown, and they found, in favor of defendants5 theory, that the order was countermanded before acceptance; the court stating to the jury that if the order was received by plaintiff, and he accepted it, by putting his postal-card in the post office, notifying defendants of his acceptance, before he received the notice of countermand, the countermand would not be effective. Under the testimony in the case and the claims [324] made by the parties, this was a fair submission of that question. Some claim is made that tbe order was one which could not be countermanded. The case is ruled by Challenge Wind & Feed Mill Co. v. Kerr, 93 Mich. 328. The order in that case recited that “this order is not subject to countermand.” The defendant wrote countermanding it; and it was said by this Court: “ The order was one which the plaintiff could accept or not, as it pleased. * * * Up to the time of acceptance, * * * the defendant had the right to countermand, as no period was fixed within which the plaintiff might accept defendant’s terms.” This is true of the order in the present case. It was one which plaintiff might accept or not, as he pleased. This was expressly reserved in the order, and until acceptance the contract was unilateral. It was stated in the order that all claims for verbal agreements not embodied therein were waived. As there had been no acceptance before countermand, the questions whether there had been a delivery of the register, and whether it was. fit for the purpose for which it was sold, become unimportant in this case, as no recovery could be had if the order was countermanded. We think that question was fairly submitted to the jury, and, they having found in defendants’ favor, judgment must be affirmed. The other Justices concurred.