21 Ga. App. 114 | Ga. Ct. App. | 1917
The controlling questions in this case are, (1) whether the writings attached to the petition as exhibits, consist
1. While a contract can be made by correspondence through mail as well as when the parties are together, the same rules applying in either case, in order to make a binding contract the offer of the seller must he accepted by the purchaser unequivocally, unconditionally, and without variance of any sort. George W. Muller Mfg. Co. v. Benton, 137 Ga. 411, 416 (73 S. E. 669). Unless the offer of the plaintiff in this case to buy from the defendant the specified number of shipping-cases at the time specified was so accepted by the defendant in writing, there would be no enforceable contract, since the order was for goods- amounting to more than $50 in value, and the contract of sale therefore within the purview of the statute of frauds. Civil Code, § 3222 (7). The only writings relied upon to show such an acceptance are the two letters set out in the petition. Can these letters be said to constitute an absolute, unequivocal, and unconditional acceptance by the defendant of the plaintiff’s order? We do not think they can be so considered. It is true that the letter from the defendant company of Eeb. 28, 1916, acknowledged receipt of the order obtained through its agent, Rosenberg. While there is some conflict in the decisions of the courts on this question, the weight of authority is to the effect that the mere acknowledgment of the receipt of an order, even though coupled with the assurance that the same should receive prompt attention, is not sufficient to show acceptance of the offer. The reason for this ruling is ably-given in the case of Manier v. Appling, 112 Ala. 663 (20 So. 978), where the Supreme Court of Alabama held that “acceptance by a wholesale merchant of an order for the purchase of goods is not shown by evidence that the merchant wrote to the buyer, acknowledging receipt of the order, and stating that it should have prompt attention.” To the same effect see also Courtney Shoe Co. v. Curd, 142 Ky. 219 (134 S. W. 146, 38 L. R. A. (N S.) 903); Van Keuren v. Boomer, 143 App. Div. 785 (128 N. Y. Supp. 306); National Cash Register Co. v. McCann, 80 Misc. 165 (140 N. Y.
3. We concede that, under the ruling in Pitcher v. Lowe, 95 Ga. 433 (33 S. E. 678), the seller may by his conduct lead the buyer to believe that his offer has been accepted and to act upon that belief, and by such conduct estop himself from afterwards denying the existence of a valid, binding and enforceable contract. In that case it was held: “An agent, in behalf of Ms principal, having sold goods to another at a specified price, the sale being conditioned upon the principal having the goods in stock when the order reached him (the goods, in case the order .was accepted, to be shipped when requested by the buyer), and the principal, upon receiving the order which was signed by the agent, having sent a letter to the buyer acknowledging its receipt,- and, without stating that the goods were not in stock, asking for references as
Since the judgment of the trial judge in sustaining the demurrer is affirmed on the ground that no complete written contract existed between the parties such as would take it without the provisions of the statutes of frauds, it is not necessary to decide whether the clause “this order is given subject to crop conditions and decline in price,” embodied in the order, rendered the contract so indefinite as to make it incapable of enforcement, as is contended in the demurrer.-
Judgment affirmed.