67 Miss. 386 | Miss. | 1889
delivered the opinion of the court.
The letter from Carothers to Alexander of date December 3, 1886, was not an offer to sell the land therein referred to. It was only a letter of advice, and if Alexander’s telegram had been promptly delivered he would not thereby have become entitled to a conveyance of the land upon payment of the price at which he had been informed it could be bought.
Both an offer to sell and an acceptance of the offer are essential to constitute a contract of sale, and if it be true that Alexander construed the letter as an offer and accepted it as such, his action could not make it what it was not. So much of the declaration as seeks recovery on the ground that an offer of sale had been made and accepted by the plaintiff, but which failed of consummation by reason of the negligent failure of the company to transmit the acceptance may be disregarded, because there is a total failure to show an offer for acceptance. The true ground of complaint as developed by the evidence is that the plaintiffs delivered-to the company a message directing and instructing Carothers to buy the lot, which message, if transmitted in due course of business, would have enabled the plaintiffs to purchase at the price of $3000 property worth $5000, but which, by the negligence of the defendant, was not delivered until the opportunity of making the purchase had been lost. Instead of stating the case according to facts and standing on it, the plaintiffs have devoted the principal portion of the declaration to counts for breach of contract in failing to deliver an acceptance of an offer of sale. The defendant, seizing upon this aspect of the case, sets up in defense that at the same time that Carothers made the offer to plaintiffs to sell the lot, he also made a similar offer to one Sims, who accepted it by delivering to the telegraph company for transmission a message addressed to Carothers one hour before the plaintiffs delivered their message, whereby he (Sims) became
The evidence tends to show that plaintiffs’ message should have been delivered to Carothers at from two to three o’clock P.M., of December 6th; that at that time the message sent by Sims had not been received by Carothers, and if plaintiffs’ message had been then delivered Carothers could and would have secured the lot for the plaintiffs. If this be true (and it is a question of fact to be determined by the jury), and if it be also true that the delay was caused by the negligence of the defendant, and that plaintiffs have sustained a loss by failing to secure a bargain, the defendant is liable. The condition of things as they really existed at Chattanooga, when plaintiffs’ message should have been delivered, and not what they would have been if Sims’ message had been seasonably delivered, is to be looked to. The defendant cannot exonerate itself, if otherwise liable, by showing that if something else had occurred, which did not, the plaintiff would not have secured the property.
The development of the case has demonstrated that so much of the plaintiffs’ declaration as counts upon their message as an acceptance of an offer to sell should be abandoned; it serves only to encumber and confuse the real controversy, which is a narrow one and hinges solely upon the count charging a failure of the defendant to transmit the message as one instructing Carothers to buy the land.
The judgment is reversed and cause remanded.