245 P. 39 | Okla. | 1926
During the months of September and October, 1920, and prior and subsequent thereto, J. Perry Wheeler was the lessee of a round bale cotton gin at Sallisaw, belonging to Anderson, Clayton Company, and by the terms of a contract between them Anderson, Clayton Company agreed to purchase all round bale cotton ginned by him, and to quote the price by telegraph from day to day that they were willing to pay for the same. If Wheeler elected to sell at the price quoted, he was to telegraph Anderson, Clayton Company, before 8 o'clock p. m. of the day of sale, the number of bales sold and ship the cotton to their warehouse at Houston, Tex., and draw a sight draft on them for the purchase price thereof.
In accordance with this contract, Anderson, Clayton Company, on September 13, 1920, sent Wheeler a telegram over the lines of the Western Union Telegraph Company offering him 291/2 cents per pound for cotton that day, to which he replied by Western Union telegram, before 8 o'clock p. m. of that day, accepting the offer and advising Anderson, Clayton Company that he was selling them 50 bales that day, and accordingly shipped said cotton to them at Houston, Tex., and drew a draft on them for the purchase price as quoted in their wire of that day, which draft was paid by them.
On October 6, 1920, Anderson, Clayton Company sent Wheeler a Western Union telegram, offering him 221/4 cents per pound for cotton that day, to which plaintiff replied by Western Union telegram, delivered to the telegraph company before 8 o'clock p. m., accepting the offer and advising Anderson, Clayton Company that he was selling them 100 bales that day, and shipped said cotton to Anderson, Clayton Company at Houston, Tex., and drew a draft on them for the purchase price thereof, which draft was paid by them.
Neither of Wheeler's telegrams was delivered to Anderson, Clayton Company. Thereafter, the market price of cotton declined, and upon the discovery that said telegrams had not been delivered to Anderson, Clayton Company, a controversy arose between them and Wheeler as to whom the 150 bales of cotton belonged, which controversy ended on October 29, 1920, by Wheeler voluntarily agreeing to accept payment for the cotton at the market price that day, which was 20.40 cents per pound.
Anderson, Clayton Company drew a draft on Wheeler for the amount of the difference between the prices quoted on September 13th, and October 6th, and the market price on October 29th, which draft was paid by him, whereupon Wheeler brought this action against the Western Union Telegraph Company to recover the sum of $1,587, the loss sustained by him, and from a judgment in his favor the company has appealed.
It will be observed that all negotiations and communications between Wheeler and Anderson, Clayton Company pertaining to the purchase and sale of the cotton were conducted by telegraph. Anderson, Clayton Company proposed to pay Wheeler a definite amount for the cotton, and he accepted their offer unconditionally. By section 5006, Comp. Stat. 1921, it is provided:
"If a proposal prescribes any conditions concerning the communication of its acceptance, the proposer is not bound unless they are conformed to; but in other cases any reasonable and usual mode may be adopted."
And section 5007, Id., provides:
"Consent is deemed to be fully communicated between the parties as soon as the party accepting a proposal has put his acceptance in the course of transmission to the proposer, in conformity to the last section."
It is well settled by the authorities that *163
contracts may be negotiated by telegraph, and that when an offer is made by telegraph an acceptance thereof in the same manner takes effect when the telegram containing the acceptance is deposited for transmission in the telegraph office, and not when it is received by the other party. Beach on the Modern Law of Contracts, sec. 63; Minnesota Linseed Oil Co. v. Collier White Lead Co., Fed. Cas. 9635; North Atchison Bank v. Garretson et al., 51 Fed. 168; Schreiber v. Anderson et al., 101 Fed. 763; Stephen M. Weld Co. v. Victory Mfg. Co., 205 Fed. 770; Trevor v. Wood,
Therefore, as soon as Wheeler delivered to the telegraph company for transmission his telegram accepting the offer for his cotton, the contract of sale was complete. He thereby became bound to sell, and the company bound to buy at the price mentioned. It was immaterial to him whether his telegram was delivered to the company or not. The company had selected its agency for the receipt, transmission, and delivery of his acceptance, and having delivered his acceptance to that agency, he did all that was required of him. Furthermore, this contract was fully performed by the parties, in that Wheeler shipped the cotton to Anderson, Clayton Company, and they accepted the same and paid therefor. The fact that Wheeler afterwards voluntarily relinquished his rights under the contract and reimbursed Anderson, Clayton Company for their loss, if any, on the cotton, does not give rise to a cause of action against the telegraph company, as it was his voluntary act in paying Anderson, Clayton Company, and not the failure to deliver his telegram, which was the proximate cause of his injury. McKee v. Western Union Telegraph Co.,
The judgment is reversed, and the cause remanded, with directions to render judgment in favor of the plaintiff in error.
All the Justices concur, except HARRISON and CLARK, JJ., absent and not participating.
