54 F. 639 | 5th Cir. | 1893
(after stating the facts.) The first question presented for consideration is how far the decision of the court below must control in the determination of the questions presented here. It is claimed by defendants in error that, the questions having been submitted to the court by the consent and upon the application of the plaintiffs’ counsel, it was not within their right to now question the result of that submission; that the case stands upon the same ground as would one tried by a court without a jury, where no finding of fact can be questioned, and that the judgment below should not be reversed if it can be seen how the court below could reasonably have arrived at the conclusion reached. We cannot accept this view of the case. The question submitted to the court below was submitted as a question of law, and not as one of fact. It was submitted upon the joint agreement of counsel for plaintiffs and defendants, and so determined. It is not considered that it was the intention of either party to withdraw the consideration of any question of fact from the jury, or for the court in any way to. take the place of a jury, as in a trial under section 700 of the Revised Statutes. The instructions to the jury to find a verdict for the defendants must be considered as based entirely upon the construction of the contract as a question of law, and subject to re-examination and review, the same as any ruling upon questions of law when excepted to.
The determination of the case rests entirely upon what construction is to be placed upon plaintiffs’ telegram of the 21st of August, and the reply thereto. Before that there was nothing in doubt or uncertainty, the contract was complete, and the terms so positive and certain that no question could be raised as to its construction and meaning. Plaintiffs had the right to call for and demand the delivery of the rock at any time during June, July, August, or September. Did the request, or inquiry, if it may be so termed, contained in this telegram of the 21st, suggest or give the defendants any.justi-' fiable grounds to believe or claim that plaintiffs, by such a request, intended to abandon any of the rights that they had under the original contract to take the delivery of the cargo, at their option, at any time previous to the end of September? ITpon the answer to this question the determination of the case rests. The original contract would stand in force until a new one was entered into by the'mutual consent and understanding of both parties, and the question is, was there a new one made? We do not consider that the language of the telegram could be so construed, but only as a request to enlarge their privilege. The word “extend,” used la the
The defendants’ telegram of the same date in response was not an acceptance of the request made. It neither granted the application nor refused it, but made a request of their own, entirely different from that of plaintiffs. They had been requested to telegraph reply, and, after their response had been forwarded, and received by plaintiffs, the proposed transaction was closed, and any letter which had been written and mailed by defendants that day could have no weight in the correspondence. The plaintiffs had received a reply by telegraph, as asked, and, their request not having been accepted, nor any notice of a further reply by mail given, they could no longer be bound by their proposal. The Code of Georgia (section 2728) can only refer to a case where the proposition is made by letter, and the reply is communicated in the same way. Here one reply was made, in the manner requested, and no law would compel an awaiting another, or hold the party proposing to the effect of such second response. Defendants’ new proposition was immediately telegraphed to plaintiffs’ home office, but it was not accepted by them, and they immediately informed defendants of a charter’s having been made for September, which informal ion was at once forwarded to defendants, and was, in effect, a refusal to accept their application for a December delivery, and a withdrawal of plaintiffs’ request for an extension.
There is another point which has been urged in behalf of defendants, and that is that when plaintiffs learned of the understanding that defendants had received of their proposed request, they did not at once disabuse their minds of this mistaken idea. Before the defendants’* letter of the 21st had been received, their first proposal for making a December delivery, by telegraph, had been telegraphed to Dublin, and the answer appears to have been forwarded to them at once upou its receipt. This was a sufficient reply to their proposal. They had resorted to the mail, and could not, in justice, complain that plain tiffs) did the same; nor does it appear that any such slight delay was in the least injurious to defendants’ interest. The first direct declaration of defendants that they understood the time of delivery liad been postponed to November was their letter of the 23d, which was replied to on the 26th, ⅛ which letter plaintiffs referred to their telegram oí the 21st, and made the explanation that they had requested an extension of time un
