Dulany-Vernay Co. v. Kalamazoo Stationery Co.

Fellows, J. (after stating the facts). We are persuaded that the trial judge should have directed a verdict for the defendant. Where no time is fixed in the offer for its acceptance, it expires at the end of a reasonable time. 9 Cyc. p. 291, 13 C. J. p. 297; and when such reasonable time has elapsed the offer is withdrawn without any affirmative act of the parties. [487] Bowen v. McCarthy, 85 Mich. 26. Where the facts are not in dispute, what is a reasonable time is to be determined, as a matter of law. Oakland Motor Co. v. Fidelity Co., 190 Mich. 74; Bayer v. Winton Motor Car Co., 194 Mich. 222; Burton v. Ladd, 211 Mich. 382. The last-cited case is, we think, controlling of the one before us. In that case we held that a delay of 51 days in accepting, an offer to lease was, under the facts of that case, so unreasonable that the court should hold, as matter of law, that the offer had expired. Each case must, of course, be controlled by its particular facts. But the facts of the instant case are much more favorable to the offerer than were the facts in the Burton Casé in this, that there the subject-matter of the offer was a lease of real estate; here the subject-matter of the offer was a commodity having a fluctuating value, changing from day to day. .The parties understood that the offer, if used at all, was to be used as a basis of a, bid to be opened April 4th. Undoubtedly the reasonable time for acceptance did not begin to run until that date. But 63 days, over two months, elapsed after that date before plaintiff even acknowledged receipt of, or communicated with defendant with reference to, its letter of March 20th. In the meantime the market value of the commodity had risen 150 per cent. When dealing in a commodity of fluctuating value this delay was so unreasonable as to require the court to say, as matter of law, that the reasonable time in which to accept the offer had expired. But plaintiff’s counsel insist that in 1914 defendant sold similar supplies to plaintiff for the same purpose, that the delay then was greater than in the year 1916, and that the 1914 transaction should be considered as a similar transaction and have a bearing on the transaction in hand. The record discloses the transaction of 1914, and in some regards it was quite dissimilar from [488] the one of 1916. To illustrate: In the transaction of 1916 no word of any kind was sent by plaintiff to defendant from the time it asked to be quoted prices on March 16th until its letter of June 7th, while in 1914 there was considerable correspondence and plaintiff advised defendant as to when the commissioners might be expected to act. In 1916 the price of paper was going up by leaps and bounds; in 1914 the price was steady as the undisputed testimony shows. Defendant might well have been willing in 1914 to make an advantageous sale of its product whether it was bound so to do or' not. But be that as it may, the one isolated transaction of 1914 did not establish a custom. While a protracted course of dealing between the parties may be considered where the question of construction by the parties is involved, a single previous offer and acceptance cannot be made to serve the purpose contended for. A single isolated previous transaction does not fall within the rule making commercial transactions between parties happening in the same way day after day indicative of what constitutes reasonable time and what is so considered and treated by them. The judgment must be affirmed. Steere, C. J., and Stone, Clark, and Bird, JJ., concurred. Moore, Brooke, and Sharpe, JJ., did not sit.