Scale Company v. Mercantile Company , 102 S.C. 419 ( 1915 )

October 28, 1915. The opinion of the Court was delivered by The appeal is from an order of nonsuit.

The action is for the price of five computing scales worth $570.

The transaction is evidenced by a paper writing, which will be reported, signed by the defendant, and called by the plaintiff a contract evidencing the sale of goods, and called by the defendant an order for or offer to buy goods.

The plaintiff sued on the paper for $571.25, the price of the scales and the cost of protest fees upon an unpaid check.

The answer plead several defenses.

The testimony tends to show that the plaintiff resided in Chicago, and sold the moneyweight scale, which was manufactured in Dayton, Ohio; that the defendant resided in Greenville, S.C.; that the Southern Scale and Fixture Co. resided in Columbia, S.C.; that one Parrish was traveling salesman for the Columbia concern, and that the Columbia concern was agent to sell the scales, and had authority to make sales without submitting offers to purchase to the principal; that on the 22d February, at the instance of Parrish, the defendant signed the paper writing and delivered it to Parrish with a check for $25 as "cash with order," under the contract; that the Columbia concern had in stock at that time no computing scales, as it sometimes had, and it sent the order direct to Dayton to be filled; that there was never any formal acceptance of the order; that it was defendant's duty to forward to plaintiff some old scales which were to be counted at $100 in part payment for the new computing scales, but it did not do so, and that feature of the transaction is obliterated; that on the 26th February the defendant directed, by telegram, the plaintiff not to send the scales, and that direction was received before the scales were shipped out; the directions were ignored, the scales shipped, and are now in railroad warehouse at Greenville, and have been ever since; that payment of the check was refused, and the same was protested.

The plaintiff's six exceptions and the defendant's three "additional grounds" make nine nominal issues.

But there are not nearly so many questions to be decided.

The plaintiff suggests that the evidence tends to prove that Parrish was the authoritative agent for the plaintiff to sell scales; that, therefore, Parrish did sell scales and took from defendant $25 as part payment on the scales, and under that act and the paper signed by defendant, the defendant was entitled to have the scales and the plaintiff was entitled to have the balance in money; that the plaintiff might have had one of three remedies: (1) Store the scales and sue for the price (that pursued in the instant case); (2) sell the scales and sue for any deficiency: (3) keep the scales and sue for any difference betwixt the contract and the market price.

The defendant suggests, that the paper writing is but an offer to buy scales; that the plaintiff's first privilege thereabout was to accept or to reject the offer; that until that privilege had been exercised, the defendant had the right to withdraw the offer; that the offer was withdrawn before acceptance; that plaintiff's duty in any event was to minimize the damages, and, therefore, to sell the scales and sue for any loss it may have sustained on the transaction.

The paper writing, and it alone, evidences the transaction; so much is expressly provided in it, if the law had not also so provided.

The plaintiff concedes, that if the defendant had sent the order by mail from Greenville, without the presence or intervention of Parrish, then the defendant might have lawfully countermanded the order.

But the plaintiff insists, that when Parrish stood by the defendant, the Moneyweight Company stood there, and it sold the defendant the scales; that is, it received the offer and then and there instantly accepted it and completed the contract of sale. If that be so, there was a sale, and the plaintiff is entitled to recover. If that be not so, the plaintiff's case falls to the ground.

If the issue goes against the plaintiff all other issues became irrelevant.

We think on that issue the plaintiff must lose.

The plaintiff itself has made the paper writing the sole arbiter of the transaction between the parties.

That instrument is in terms an order to the Moneyweight Scale Co. to ship the defendant five computing scales, at a price. It provides in words "that this shall not be countermanded."

The paper writing is not denominated.

It is true, the paper suggest at one point that it is a "contract," — "this contract covers all agreements," etc.

But that circumstance does not constitute it a contract.

If the Moneyweight Company had been present in person in place of Parrish when the paper was signed, it could not say the paper meant other than it expresses.

It does not now say the paper expresses aught but an order for goods, which must generally be accepted before a contract is struck.

It does not say if it, the Moneyweight Company, had been there, as it says it was in the person of Parrish, and both wrote and received the paper, then such act of reception itself constituted an implied acceptance of the order.

Whether the offeree does accept involves an intent, and such intent must be expressed by words or by acts.

"A mere determination of the will to accept an offer does not constitute an acceptance; there must be words, written or spoken, or some other overt act." "The Doctrines of the Law of Contracts," by Bishop, sec. 183.

In the instant case there was no words of acceptance written or spoken. The only overt act was the reception of the offer. The payment of $25 was but a part of the offer.

If the mere reception of an offer itself constitutes an acceptance of it, then the case ought not to be altered when the reception is through the agency of the mail through long distance. But plainly and concededly, if the reception of the offer had been by mail at Chicago, that would not have been an implied acceptance.

To conclude that a manual and personal reception of an offer on the heels of its making is acceptance of it, is to ignore the essential character of an offer, and to eliminate it from the transaction.

It may be that if an individual offeree should in his proper person and immediately upon its execution, receive from the offerer's hand the paper writing containing the offer, that fact, with the attendant circumstances, might warrant a submission to the jury whether the act of receiving amounted to an implied acceptance of the offer.

But where, as in the instant case, the offer is made and is delivered to a salesman, and not a salesman of the offeree, but a salesman of their selling agent, and by him transmitted by mail to the principal, it is not fairly inferable that the reception of the offer amounted to its acceptance.

And the case is not mended though the principal should testify as it did, that in their judgment they would have had no right of rejection of the offer under the words of the writing.

The right to accept involves the right to reject; and whether under the circumstances the plaintiffs would have the right to reject, depends not on what they say, but depends upon the law and the testimony of the case.

An endorsement of acceptance on the offer would have constituted express words of acceptance.

A sending of the goods before the countermand, would have been an overt act implying acceptance.

The case is not helped by the testimony of witnesses that Parrish had the power and apparent authority to sell. The answer in the paper he drew shows he did not exercise that power, but offered to sell.

The argument that had the plaintiff refused to deliver the defendant might have lawfully sued the Moneyweight Company on the contract of sale, is an argument in a circle. The same question would arise there as arises here.

The case cited by appellant, The Seneca Co. v. Crenshaw, from 89 S.C. 470, 71 S.E. 1081, does not decide the question which is made here.

There is no denial here that the agreement not to countermand is of no force, unless the defendant got some consideration for such an agreement, and of that there is no proof.

In the Seneca case above referred to, the offer had been accepted by the overt act of shipping out and delivery of the goods, and the offerer had shipped them back.

The contract was struck in that case.

Our judgment is, the order of nonsuit must be affirmed, and it is so ordered.

MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES WATTS and FRASER concur in the opinion of the Court.