Vincent v. Woodland Oil Co. , 165 Pa. 402 ( 1895 )

Opinion by

Mb. Justice Mitchell,

The learned judge left to the jury whether any sale was made by the plaintiff before notification of the change of price, and in doing sa he charged them, by affirming plaintiff’s third point, that the Eastern Oil Company as purchasers “ were entitled to a reasonable time in which to accept or reject the proposition, and what was such reasonable time is a question of fact for the jury,” The same principle runs through the charge as pointed out in the assignments of error, and it is plain that the finding of the jury was based upon that view of the case. But the direction was erroneous, and the undisputed facts show that there was no such sale.

An offer without more, is an offer in the present, to be accepted or refused when made. There is no time which a jury may consider reasonable or otherwise for the other party to consider it, except by the agreement or concession of the party making it. Until it is accepted it may be withdrawn though that be at the next instant after it is made, and a subsequent acceptance will be of no avail. The circumstances here show conclusively that the defendant’s offer was not an open or continuing one. Time was not only of the essence of it, but was intended to be urgent. The nature of the property as oil-producing made it liable to fluctuations in value which raise a presumption that time was of the essence of transactions concerning it, and the facts in regard to the wells in the immediate vicinity then going down show that a new development at any hour might materially affect its value and that this was understood by the parties. The written authority to the plaintiff was to offer it at a “ present price,” and this was shown to the intended purchasers and was notice to them that the price was likely at any moment to be changed. The plaintiff made the offer to the Eastern Company on Monday. On Wednesday plaintiff telegraphed defendant that the purchaser would “ go on the property on Friday” and the same day, Wednesday, defendant telegraphed back to plaintiff “ must have an answer before to-night.” On Thursday plaintiff returned to Pittsburg and was told by defendant that in the meantime another well had come in, and the price of the property had been advanced. Was there any evidence on which the jury should have been allowed to find that there had been a sale made previous to this notice to plaintiff of the change in price ? We do not find any. There had been no present acceptance of the offer by the Eastern Oil Company. Plaintiff testified “ they said if the property was as it was represented they would purchase ” and Forman the president of the Eastern said “ we sent our superintendent to investigate the property a'nd concluded to buy it at the price of $150,000 named.” This is substantially all there is on the subject and it shows that at no time previous to the examination of the property, had the Eastern Company accepted the offer, or given anything but a conditional promise to accept thereafter, if in their judgment the property came up to the description. Before they had done so the defendant withdrew the offer. There never was the essential basis of a contract of sale, the concurrence of the two minds at the same time.

There is nothing in the case of Middleton v. Thompson, 163 Pa. 112, which conflicts with these views. It was there held that a broker has certain implied authority in regard to representations as to the title of his principal, and as to the examination of it by the intending purchaser. So it may be freely conceded here that plaintiff had authority to stipulate that the property should be as it was described, and if the Eastern Company had accepted the offer, subject to such condition, the contract would have been complete, although conditional, and no new conditions could have been added except by consent of both. But as already seen, there was no acceptance at all prior to the withdrawal of the offer. In Middleton v. Thompson there was no question of revocation of the agent’s authority. Here the whole case turns on the effect of such revocation by the alteration of the terms on which he was authorized to sell.

There having been no performance of the plaintiff’s undertaking to sell, nor what would for the purpose of this case be equivalent, the procuring of a purchaser on the stipulated terms while they were in force, the plaintiff cannot recover commissions as such, but so far as at present appears there was no agreement that his services were to be rendered on a mere contingency, and his authority having been revoked for no fault of his, he may be entitled to proper compensation for his time, labor and expenses, incurred in good faith in the defendant’s interest, before notice of the change in the terms of his agency. This, matter was submitted by the learned court below to the jury, but in connection with the question of a sale, and we are without means to determine on which basis the jury made up their verdict.

Judgment reversed and venire de novo awarded.