127 Mo. App. 693 | Mo. Ct. App. | 1908
This action is for damages for an alleged breach of contract. The judgment in the trial court wras for the plaintiff. The defendants filed a motion for a new trial which was sustained and thereupon plaintiff appealed from that order.
It appears that defendants are dealers in eggs at Chicago, Illinois, and that plaintiff is snch dealer at Abilene, Kansas. - That on February 7, 1906, defendants wishing to purchase a carload of fresh eggs at eighteen cents per dozen, telegraphed on that day to plaintiff as follows: “Offer eighteen delivered car fresh eggs ship today prompt wire acceptance.” On the same day plaintiff telegraphed from Abilene his acceptance of the offer in these words: “Your offer eighteen ac
The evidence disclosed that defendants’ telegram offering eighteen cents and requiring prompt acceptance, was delivered at plaintiff’s place of business at 10:05 o’clock a. m., though not received by plaintiff personally until 11:30 as he was engaged outside of his office. At about 12 plaintiff wrote the acceptance above set out and sent it to the telegraph office, but the operator had gone to dinner. There was but the one office in Abilene and plaintiff sent the dispatch again, shortly after one o’clock. The operator had not yet returned and plaintiff then went to his dinner and on his return, after two o’clock, sent it again. The operator’s record at Abilene shows that it was received by her at 2:45 and it was received by defendants at Chicago at 3:31.
The trial court instructed the jury that the words of the telegram requiring “prompt wire acceptance” meant that plaintiff was to telegraph acceptance as soon as he reasonably could under the circumstances in evidence, a synopsis of which we have stated. In other words the jury were told that the words meant a reasonable time. In our opinion this was an erroneous construction of the telegram and the trial court was right in so considering. The plaintiff was not only required to telegraph his acceptance, but he was required to do so promptly. The word “promptly” must have been used for some effective purpose, and courts are not at liberty to substitute some other time than that named by the offer. After an investigation of the subject in the case of Metropolitan Land Co. v. Manning, 98 Mo.
Defendants’ proposition was conditioned that the telegram of acceptance should be sent promptly. It ought to be manifest that plaintiff’s inability (if he was unable) to comply with such condition, should not prejudice defendants. Plaintiff’s inability to respond promptly as required was not unlike if he had been unable to buy at the price offered. The time of response was as much a condition as the price. And even if he had had an excuse, in that it had been impossible for him to respond, that should be his misfortune and not defendants.’ Suppose the telegraph office had burned immediately upon receipt of the dispatch to him or the wires had been destroyed by a storm and he had been unable to respond for a week, would that misfortune
Plaintiff considered some explanation of his delay, to be necessary and so he said in a letter to defendants that (italics ours) “There was no unnecessary delay on my part in accepting your offer and what seeming delay that did occur could not very well be avoided. Your first wire was received between 10 and 11 o’clock when I was oiit assisting the men in looking after the loading of the car, and when I got around to answer it I found the lady operator out to dinner and had locked up the office which she always does during the noon hours. I wrote the acceptance and sent it to the office again about one o’clock and the operator was still out to dinner and as soon as I returned from dinner myself I sent the message again and she forwarded the same to you.” It thus appears that plaintiff’s idea is that the mishap of his being out of the office when the telegram was received should be visited upon defendants; and that although he knew the telegraph office would close at the noon hour and he delayed sending the acceptance to the office until that hour, and even then rather than send for the operator to come to the office he made no request of her but chose to go to his own dinner and let defendants wait; that these matters of mere trivial convenience to him should outweigh the contractual rights of defendants. He took more than four and one-half hours in accepting an offer which should not have required more than a few minutes. Plaintiff asks if it should be expected that he would be at the telegraph office when a dispatch is received and make instant answer. We answer no; that there should be reason in all things, and that it should no more be expected that he would answer literally the instant the dispatch was received than that he should dally with it, as he did, for more than half of a business day.
The authorities cited by plaintiff are not applicable
The judgment is affirmed.