72 So. 502 | Ala. | 1916
This suit grows out of the sale of certain machinery and fixtures by the Southern Wesco Supply Company to Mt. Dixie Sanitarium, Land & Investment Company. The contract had inserted therein a clause retaining the title to all material sold until paid for in full. The concluding paragraph of the contract reads as follows: “The foregoing contract is subject to approval of an executive officer of the party of the first part. It shall not be binding upon the party of the first part
The contention of the appellee in this case, it seems, is, that the contract by which the title to the property sued for was retained, and under which plaintiff claims; was signed by it at Columbiana, and at that time did not contain the clause whereby the seller retained the title to the property and by which clause the plaintiff claims title in this case, but that same was delivered to an' agent of the seller to be submitted to the seller' for its approval ; that after it reached the seller, the words retaining the. title in the seller were then and there inserted by the seller. The seller denies that it was signed by the appellee before the paper-came to it, and claims that when the words were added it had not been signed by the buyer, appellee. The court charged the jury that if the words retaining title were added after the appellee signed the contract, plaintiff could not recover. The principles of law which apply to the controversy are not so much those which pertain to the alteration of instruments and a ratification of the same, but rather those which pertain to the execution of contracts.
“Where the offer is to do something, if the offeree will not merely promise to do, but do something, compliance with the condition of the offer, by doing the act, in the way prescribed is ordinarily sufficient evidence of the acceptor’s assent, and it is not necessary to show that he notified the offerer that he accepted the offer, and would perform the condition/’ — 9 Cyc. 270.
If appellee submitted a proposal to the seller for approval and if the seller shipped the goods called for without notice to the buyer of approval or disapproval, it would, in law, amount to an acceptance of the proposal in the terms submitted.
“Where one offers to do a definite thing and another accepts conditionally or introduces a new term into the contract, his answer is either a mere expression of willingness to treat or it is a counter proposal, and in neither case is there an agreement.”— 9 Cyc. 267.
The true issues of fact, therefore, as developed by the evidence which should be submitted to the jury, were as follows: Did the appellee execute the contract after the title clause was put into it ? If so, it would not be necessary to go further. Did the appellee execute said contract before said clause was inserted ? If so, the result depends upon subsequent events: (a) Did the seller ship the goods, without notifying the buyer of such proposed change in the contract, and were they so received and retained, without such notice; or (b) did the seller notify the buyer of the change, and did the buyer approve the contract so changed, either expressly or impliedly?
There is evidence upon those issues from, which different conclusions may be drawn, and which, therefore, should have been submitted to the jury.
It clearly appears that these principles were not given effect on the trial of the cause. As an illustration, this is disclosed by the giving of charge 9 at defendant’s request. But we need not treat the several assignments of error.
The judgment of .the court below is reversed, and the cause is remanded.
Reversed and remanded.