145 Mo. App. 185 | Mo. Ct. App. | 1910
This is a suit on an account for sixty-five dollars, begun before a justice of the peace. The defendants had judgment in the circuit court where the case had been taken by appeal.
It appears that plaintiff is a manufacturer of “cash registers” in the State of Ohio, and that through a traveling salesman, on the 13th day of March, 1908, it sold to defendants, at Dover, Missouri, by written contract of sale, one of its registers, for the above price. The contract contained the following provision: “This, order is taken so it gives Redd Bros, the right to cancel the same Tuesday, the 17th of March.” On the back of the contract was this provision, that the order “is taken subject to acceptance by the McCaskey Register Company at Alliance, Ohio.”
It is conceded that there must be notice of cancellation given to plaintiff by defendants, and the sole question is, when does a letter become notice of cancellation, the date it is mailed by the purchaser, or the date it is received by the seller? When one makes a proposal of sale by letter he makes the mail his agent to which the acceptance may be delivered; and therefore a letter of acceptance, properly, stamped and directed, is an acceptance at the time a letter is mailed.
But if the purchaser contracts to purchase, reserving the right to cancel the order by a certain date, he must adopt a mode of notice that will reach the seller within the time reserved. [Price v. Atkinson, 117 Mo. App. 52; Bishop on Contracts, sec. 326; Tiedeman on Sales, 39, 40; Cyc., Vol. 9, 296, sec. g.]
There is good reason for the difference in time of notice of acceptance of an offer and a cancellation of an order. In the former, the offer is open long enough, of course, for an acceptance according to the nature of the offer, and no longer, and it is assumed that the party making the offer would wait sufficient time for an acceptance to reach him in the mode it was to be made, and though reaching him, in due course, after its deposit in the mail, it would be effective from the latter time. But in the cancellation of an order the seller could reasonably only be required to wait the expiration of the time limited, and if he did not then receive notice to the contrary, he would be justified in shipping the goods, or beginning their manufacture, as the case might be.
The instructions of the court given for plaintiff were correct. It seems that defendants did not ask any.
Something is said in the briefs about a printed endorsement on the back of the contract that the order was taken subject to acceptance by plaintiff at Alliance, Ohio. We do not see how that can be made part of the case. It was not acted upon by defendants, nor was it relied upon by them, since no issue of that nature was submitted to the jury.
The judgment is reversed and the cause remanded.