Russell v. Falls Manufacturing Co.

Dodge, J. The plaintiffs’ response to the defendant’s written order contained material modifications. The specification of terms slightly different from those used in the order could have been intended for no other purpose than to modify the order; otherwise, the response need have gone no further than the expression, “We accept.” That specification of terms was, first, that the flour was “ to be shipped some time in June,” while the order required that It should be shipped out any time between March 27th and July 1st when ordered Toy the defendant. Again, the terms of payment in the order were thirtj'' days from shipment. Plaintiffs’ response industriously insisted on their terms of a thirty-days acceptance without interest, to be dated the same day as the invoice and bill of lading, and to be signed and returned as soon as the car was unloaded. The distinction between an open account and an “acceptance” is material; for the word acceptance fairly implies a piece of commercial paper, which might then pass into the hands of an innocent holder and deprive defendant of defenses if any should develop within the thirty days. Thirdly, the plaintiffs’ 332 letter imposed upon any delinquency, after the thirty clays, interest at the rate of eight per cent., which was not tendered by the offer, from the terms of which only sis per cent, penalty would result. The terms of the order being substantially modified in the plaintiffs’ response, that did not close a contract, but consti-tnted merely a new offer, not binding until itself accepted. True, acceptance would readily be inferred from any conduct on defendant’s part indicative thereof. Doubtless had it ordered any of the flour after receiving plaintiffs’ letter, that would have sufficed; but mere silence bears no such significance, and defendant’s first utterance after plaintiffs’ counter offer was a withdrawal of its original order, and was inconsistent with any idea of a binding contract. There is no evidence, therefore, that the minds of the parties ever met so as to form a mutual contract of purchase and sale, either on the terms of defendant’s order or plaintiffs’ counter offer, and nonsuit was properly granted. By the Cou/ri.— Judgment affirmed.