213 Mass. 354 | Mass. | 1913
It is sufficiently manifest that the sale note, so called, drawn by Prendergast and Company, is not to be regarded as a contract between the parties. The authority of Prendergast to act for the defendant was certainly not clearly shown. But if it be said that there was some evidence of such authority, or at any rate some evidence that the defendant, in previous transactions with the plaintiff, had so far held out Prendergast as its agent that it could not now deny his authority, yet there was no evidence that he could bind the plaintiff, or that the plaintiff in any way had adopted the terms of the sale note before it was reduced to writing and communicated to the plaintiff on November 12, 1908, by Prendergast’s sending to it a duplicate of the sale note. The utmost effect that could be given to the sale note, therefore, was to treat it as an offer made by the defendant to the plaintiff. But on the same day the defendant through Prendergast modified the offer by adding a stipulation that the plaintiff must not call for more than fifteen thousand pounds of yarn per month. The plaintiff’s letter of November 13 to Prendergast establishes the fact that it received this modification before it had accepted the defendant’s original offer. The plaintiff was unwilling to accept the offer as thus modified, and there was considerable further correspondence. Finally the plaintiff wrote a letter which, rightly or wrongly, the defendant regarded as a stipulation by the plaintiff that it would not call for more than twenty thousand pounds of yarn per month, and the defendant consented to this in writing, its consent was communicated to the plaintiff; and deliveries began to be made by the defendant to the plaintiff.
Under these circumstances, it is plain that either there was no binding contract between the parties because the original offer had been modified before its acceptance and their minds never had met upon the offer as modified, or else that the contract contained
On the latter hypothesis, the defendant would be liable for the non-delivery of about eight thousand four hundred pounds. As ■ at the argument before us the defendant conceded its liability to this extent, we need not determine which alternative was correct.
The result is that the defendant’s seventh request for instructions should have been given; the exceptions must be sustained; and there must be a new trial on the question of damages only.
So ordered.
