49 Pa. Super. 228 | Pa. Super. Ct. | 1912
Opinion by
The appellants are commission merchants in Philadelphia and the appellees are produce dealers in Ireland. On April 10, 1909, negotiations were commenced between the parties to the suit by cable for the shipment of 3,000 bags of potatoes by appellees to appellants on the steamship “Friesland,” which vessel w£,s to sail from Liverpool about two weeks earlier than the “Haverford” which was to sail from the same port. A large number of cablegrams passed between the partiés which are all set out in the statement of claim, and, in our opinion, the first one of importance, for our consideration in this opinion, is the appellees to the appellants of April 14, 1909, as follows: “Offer accepted. 3,000 ‘Friesland’ 75 confirm.” The meaning of this, as explained in the statement of claim, is that the appellees offered to sell to the appellants 3,000 bags of potatoes at seventy-five shillings per ton. This offer was never confirmed by appellants and did not ripen into a contract. On April 15, the appellees cabled to the appellants: “ ‘Friesland ’ is fully booked. Shall I ship ‘Haverford’?” The affidavit of defense denies that the latter cablegram was ever received, but the statement avers that it was sent and the affidavit does not deny the sending. Up to this point, however, there was no contract between the parties and the prior cablegrams are important only to show the subject-matter
We think the contract was formed by the following cablegrams (From appellants to appellees, April 15,1909): “Telegram came to hand too late! Business cancelled unless you will accept order same price as others 72 shillings per ton. Telegraph if you accept.” (From appellees to appellants, April 15, 1909): “If you will not accept 75 shillings telegraph. I can place elsewhere.” (From appellants to appellees, April 16, 1909): “Will not accept unless at our price. Do just as you please.” (From appellees to appellants, April 17, 1909): “Rather than lose the business I will accept your offer. Shipment ‘Haverford.’ Confirm.” (From appellants to appellees, April 17, 1909): “We confirm tjie purchase.” This we consider a clear, definite purchase made by the appellants of 3,000 bags of potatoes for seventy-two shillings per ton. The appellees clearly agreed to that proposition, with the statement that the shipment would be made per the steamship “ Haverford,” with a request for confirmation and a clear and concise confirmation was cabled by the appellants on the same day, to wit: “We confirm the pur-| chase.” The affidavit of defense does not deny the breach of this contract by the appellants and it does not deny the loss to the appellees by reason of such breach, as set out in the statement of claim. In their affidavit of defense appellants squarely take the position that the contract set forth in the statement was never entered into as a matter of law. Therefore, we think this is the only question before the court. These cablegrams are clear and concise and the affidavit of defense does not sufficiently set up any fraud, artifice or trick, or any other ground sufficient to carry the case to a jury.
It is true that on April 17, 1909, about one hour after
The appellants could not abrogate this contract by the cablegram sent an hour later without the consent of the appellees. The learned counsel for appellants contend that in such cases, “the usual practice is an offer and acceptance and then a confirmation by the offerer.” By this they advance, as a proposition of law, that a contract is not complete with the offer and acceptance but must be followed by a confirmation or some further action on the part of the offerer. We do not so understand the law and it does not seem necessary to cite authorities to sustain the proposition that when one offers to sell a quantity of merchandise and deliver the same at a stipulated place and for a named price, and the other party accepts the offer, the contract is then, without more, complete. Really the only difference between the parties in regard to this contract was the shipment by the “Haverford” instead of by the “Friesland.” But the appellee’s proposition to ship the potatoes for the price named to appellants was by the “Haverford.” The cablegram was concise and plain and if appellants read it they must have known that the shipment was to be by the latter vessel when they sent their cablegram of April 17, “we confirm the purchase.” The cablegram of April 17, must be construed as negativing all prior negotiations as to shipment on the
On the point that the contract was completed at the moment when the appellants delivered their cablegram, dated April 17, 1909, “we confirm the purchase,” to the cable company we cite 7 Am. & Eng. Ency. of Law (2d ed.), 135, where it is said: “That is to say, the act of acceptance which completes the contract takes place when the answer containing the assent is sent, properly addressed, whether by messenger, or mail, or telegraphed. It does not depend upon delivery of the answer to the one who made the offer, and it completes the contract even though the delivery never takes place.” In the same volume, on p. 134, it is said: “Where the parties are separated and the contract arises out of an accepted offer, it is often important to determine when the obligation commences. The rule is that the obligation becomes obligatory from the moment the minds of the parties meet, even though a knowledge of the concurrence has not been brought home to them, and though one of the parties may have died after the act of assent has taken place without learning of it.”
In Page on Contracts, sec. 52, it is said: “Where the mail or telegraph is ^ proper means of communication the Jgreat weight of modern authority is that the acceptance is binding on both parties from the moment it is transmitted, if such transaction is effected-in the proper way. So an insurance policy which is not to be in effect until ‘delivery’ takes effect when it is mailed to the insured postage prepaid. ... If the party making the offer attempts to revoke the offer by sending a later letter or tele
In Tayloe v. Fire Insurance Co. of Baltimore, 50 U. S. 390, the plaintiff had been in negotiation with the defendant insurance company for a policy on some of his property. The company notified its agent that the risk would be accepted. The agent notified Tayloe of the company’s approval of his application, and on December 21, 1844, Tayloe sent the agent a check for the premium. On December 22, 1844, the property so insured burned. This occurred before the letter containing the premium reached the insurance company’s agent. Tayloe brought suit to recover the insurance; and the supreme court of the United States, in reversing judgment of the lower court in favor of the defendant, held that Tayloe could recover.
In Minnesota Linseed Oil Co. v. Collier White Lead Co., 4 Dillon, 431, the court said: “It is well settled by the authorities in this country and sustained by the later English decisions, that there is no difference in the rules governing the negotiation of contracts by correspondence through the post office and by telegraph, and a contract is concluded when an acceptance of a proposition is deposited in the telegraph office for transmission.”
Under the above authorities, and others, we are without doubt that the appellant’s cablegram of April 17, 1909, accepting the appellees’ offer of the same day completed the contract. The appellees’ offer to ship by the “Haverford” was plain on the face of the cablegram and we can .discover no evidence of any fraud, trick or artifice used by the appellees to induce the appellants to accept their
The learned counsel for appellants argue that the word “Haverford” was a catchword intended to deceive the appellants but there is not the slightest evidence of this and it is idle to contend that the appellees in Ireland could think or even imagine that the appellants would mistake their cablegram of April 17, and read the word “Haverford.” “Friesland.” The principal thing the parties were contracting about was the sale and shipment of 3,000 bags of potatoes, and while it is true that the appellants had requested that the shipment be on the “Friesland,” yet we are wholly unable to see anything like fraud, trick or artifice in the cablegram “rather than lose the business I will accept your offer. Shipment ‘Haverford.’ Confirm.”
Appellant’s counsel cite Fidelity & Cas. Co. v. Teter, 136 Ind. 672, on the proposition that contracts in writing do not bind where the complaining party has been put off his guard by reason of fraud or concealment of the other party. They also cite Croyle v. Moses, 90 Pa. 250, and 9 Cyc. 412, citing Aaron’s Reefs v. Twiss, 65 L. J. P. C. 54. But we do not think these cases sustain their position. The Indiana case related to insuring the plaintiff’s decedent while riding in public conveyances. A recovery was denied for an accident happening outside of a public conveyance, although defendant’s agent had said that the policy covered every part of the deceased’s journey. As to the contract the court said: “Its language is clear, positive and within the comprehension of a man of ordinary diligence. With such contracts the parties are bound by their-'contents and are presumed to have acted with full knowledge of their proper construction.”
' Croyle v. Moses, 90 Pa. 250, was a case where there was a fraudulent representation as to the soundness of a horse. The vendor knew him to be unsound in a certain respect,
In the Twiss case we understand there was a false representation inducing the subscription to the stock of a corporation. Several other cases are cited in the same connection but as we understand them they were based on obvious and apparent mistakes made by the offerer and the offeree snapped up the offer and alleged that a binding contract had been made. In our opinion none of these cases are in point as to the present one.
Lastly, in their argument, appellant’s counsel contend that the question of a custom which would modify or set aside a contract between the parties should be submitted to a jury. The contention is that such a cable contract is not considered by the parties as completed until a credit is cabled to a reliable banking house to take up the bill of lading; that this custom was well known to the appellees, and that no credit was cabled in this case because of the immediate cancellation of the cablegram which was mistakenly sent. If there is such a custom as is alleged, it is not a condition precedent to the making of contracts' between merchants of Ireland and commission merchants of this country. At most it was an advantage that accrued to the appellee. They might havé demanded the cabling of a credit. It is well said by appellee’s counsel: “It is difficult to see how the defendants can avail themselves of their own default in not cabling the credit. The custom was one under which the plaintiffs had a right to demand the advantage conferred by it or they might waive such an advantage. They elected not to demand the credit.” We do not think the question of the custom is sufficient to carry the case to a jury. It surely did not injure the appellants that the appellees saw fit to waive the custom, if it existed.
Upon a careful consideration of the appellants’ affidavits of defense, argument and authorities, we reach the conclusion that the learned court below did not err in
The assignments of error are all dismissed and the judgment is affirmed.