Sherley v. Peehl

Cassoday, J. The foregoing statement contains the substance of such portions of the correspondence as constitute the alleged contract upon which this action is based. Being in writing, the only question is as to the true construction of the contract thus made. We agree with the trial court that the sales to Webster Bros, were made by the plaintiffs through the defendant, as their agent, without any request that he should guaranty the payment thereof, and that the plaintiffs accepted such orders without any such guaranty having been required or made. The more difficult question is whether the defendant actually agreed to discount such claims after the sales were actually made. His telegram of August 26, 1889, was an unconditional offer to discount both bills, without recourse, after the, 15th. This was clearly intended to mean, and the reply of the plaintiffs sent the same day shows it was understood to mean, the 15th day of the following Septembe^, By that letter the defendant was informed that the plaintiffs would let him know about the 15th whether or not they would avail themselves of his offer. This was equivalent to informing the defendant that they would hold his offer under consideration for acceptance or rejection until about the 15th, and then let him know. Had the defendant been unwilling to assent to the proposition that his offer should thus be considered as a continuing offer until the 15th, he could very easily have corrected the impression or have 52 withdrawn the offer altogether. But he did nothing of the kind. On the contrary, he appears to have remained silent on the subject until two months afterwards. In the mean time, and five days before September 15, 1889, the plaintiffs accepted the offer contained in the defendant’s telegram mentioned, as indicated in the foregoing statement. True, the letter states that such acceptance was in accordance with the defendant’s original agreement, as well as with the telegram, but that did not prevent its being an unqualified acceptance of the offer contained in the telegram. In the language of a Massachusetts case cited: “ Though the writing signed by the defendant was but an offer, and an offer which might be revoked, yet, while it remained in force and unrevoked, it was a continuing offer during the time limited for acceptance; and during the whole of that time it was an offer, every instant; but, as soon as it was accepted, it ceased to be an offer merely, and then ripened into a contract.” Boston & M. R. Co. v. Bartlett, 3 Cush. 227. “Willingness to contract once manifested is presumed to continue for the time limited by the offer, or, if not so limited, until expressly revoked, or over-pome by a contrary presumption.” Mactier’s Adm’rs v. Frith, 6 Wend. 103, 115. In the opinion of the court in that case by Mr. Justice Marcy, it is in effect said that assent to a proposition may sometimes be presumed from a party’s silence. In a very recent English case it is said by Lord Herscheel “ that a person who has made an offer must be considered as continuously making it until he has ■brought to the knowledge of the person to whom it was made that it is withdrawn,” and he cites several cases in support of the proposition. Henthorn v. Fraser, [1892] 2 Ch. 31. See, also, Stevenson v. McLean, 5 Q. B. Div. 351. These decisions are in line with our own adjudications. Matteson v. Scofield, 27 Wis. 671; Washburn v. Fletcher, 42 Wis. 170; Hawkinson v. Harmon, 69 Wis. 551. We must hold that the defendant’s offer by telegram 53 remained open until it was accepted. It is true that Webster Pros, failed after the defendant’s offer, and before its acceptance; but it is also undisputed that the defendant was in their store, and ascertained the fact of such failure, six days before such acceptance, and hence had plenty of time to withdraw his offer before it became binding, had he desired to do so. We must hold that the defendant is liable on the contract. By the Court.— The judgment of the superior court is reversed, and the cause is remanded with direction to enter judgment against the defendant and in favor of the plaintiffs for the amount claimed in the complaint, and for further proceedings according to law.