Strong v. Gatlin's Adm'r

35 Ala. 607 | Ala. | 1860

A. J. WALKER, O. J.

The letter from defendant, of 25th September, 1851, was addressed to Catlin £ Armstrong, and requested them to publish an advertisement, in their paper for three months. This suit is brought for the publication by Gatlin alone in his paper of an advertisement for three months. To every contract the mutual assent of both parties is indispensable. The only predicate for the inference of the defendant’s assent to the contract here, is his letter to Catlin & Armstrong; and the only predicate there could be for the inference of the plaintiff’s assent, is the compliance on his part with the defendant’s request. The contract, to which the defendant assents by the proposal of his letter, differs from that performed, in that the performance was by Catlin alone, and not by Catlin & Armstrong, and that the publication was in the paper of Catlin alone, and not in the paper of Catliu & Armstrong. Whether the variance thus stated may not be shown to be totally immaterial, and be so explained as to demonstrate that there was really no variation in the performance from the proposal which the law deems worthy of consideration, we do not decide. There is nothing in the facts stated in the bill of exceptions, or presented by the hypothesis of the charge, which affords such explanation ; and we are not authorized to disregard the variation. We decide, therefore, upon the record before us, that the defendant did not assent to the contract performed by the plaintiff, and that there was not that mutual assent which is necessary to support a contract. If one proposes to another a contract, it must be wholly accepted, or wholly rejected: it cannot be 'accepted with a difference of terms; and in general it makes no difference that the diversity is small. If the person addressed vary the terms of the proposition, there must be either an express or an implied assent to the modification. — 1 Parsons on Contracts, 400, 401; 2 Story on Con. 967, 968; Addison on Con. 1129, 1136; Nixon v. Fletcher, 3 M. & W. 146; Hill v. School Nistrict, 17 Maine, 322; Allen v. Cooper, 22 Maine, 136; 2 Parsons on Con. 147.

From what is above adduced in the way of argument and authority, we conclude that the court erred in the first charge given. Whether there may not be some other ground, from which the defendant’s assent to the terms complied with by the plaintiff may be implied, will be a subject of inquiry on a future trial. It may be, that the defendant will be bound, if he knew that the plaintiff was publishing the advertisement in his papei’, while the publication was in progress, and failed to dissent from it. But upon that point we decide nothing, as it is not before us. — See Addison on Con. 19-20; 1 Story on Con. § 379.

[2.] The question of the statute of limitations in this case, the cause of action having originated in 1851, must be governed by the law as it existed before the adoption of the Code. — Pamphlet Acts of ’53-54, page 71. Under that law, a parol conditional promise to pay is sufficient to revive the debt, if the condition has been complied with. — Evans v. Carey, 29 Ala. 99; Angelí on Limitations, § 235.

We content ourselves with saying, that if the defendant did, in 1853, make a promise to pay upon a condition, and that condition was complied with, the debt would be taken out of the statute of limitations as to the original cause of action. Upon the effect of the evidence in this case, it is not necessary that we should pass.

The judgment of the court below is reversed, and the case remanded.