Supreme Court of Alabama, 1921

Gilmer Bros. Co. v. Wilder Mercantile Co.

Supreme Court of Alabama · Decided April 7, 1921 · Anderson, Sayre, Gardner, Miller

88 So. 854; 205 Ala. 650; 1921 Ala. LEXIS 578 (Southern Reporter)

Counsel

Thigpen, Murphy Jones, of Andalusia, for appellant. There can be no contract until all the terms are agreed upon. 138 Ala. 235 , 35 So. 46 ; 117 Ala. 480 , 23 So. 67 ; 204 Ala. 415 , 85 So. 723 ; 204 Ala. 59 , 85 So. 719 ; 35 Cyc. 55. Orders taken by traveling salesman are not binding contracts until accepted by the principal. 147 Ala. 290 , 39 So. 907 . The letter acknowledging the order was not an unqualified acceptance as would bind the seller to fill the order. 112 Ala. 663 , 20 So. 978 ; 23 R. C. L. 1289. The later letter submitted a counter proposal and became binding on all parties when the goods shipped thereunder were accepted by the buyer. Authorities supra. A. R. Powell, of Andalusia, for appellee. The failure to promptly repudiate the order, which was marked "accepted" in the seller's name by his agent, was a ratification of the acceptance. 10 Ala. 755 , 44 Am. Dec. 505; 68 Ala. 170 ; 71 Ala. 271 ; 65 Ala. 113 ; 18 Ala. 270 ; 144 Ala. 545 , 39 So. 359 ; 118 Ala. 617 , 24 So. 349 , 72 Am. St. Rep. 189; 2 C. J. 493. The letter raised no question as to the agent's authority, but simply the question of credit, and this was a ratification. 34 Misc. Rep. 535 , 69 N.Y. Supp. 964 .

Opinion of the Court

ANDERSON, C. J.

[1] It may be conceded that the sale made by Carver, the appellant’s traveling salesman, did not become binding upon it until accepted by the proper authority at the home office, but the letter of October 1, 1917, acknowledging receipt of the order, was in effect the acceptance of said order as then given, with the sole condition or proviso that the investigation of defendant’s credit standing would be found satisfactory. True, the letter concludes by saying:

“Just as soon as wei receive this information we will advise you as to acceptance of your order.”

Taking this, however, in connection with the entire letter, it could mean nothing more than the acknowledgment of the order'and' the acceptance of same, provided the defendant’s credit standing proved satisfactory, and as to which the defendant would be notified after the investigation of same. The acceptance having therefore been made with the sole condition that the defendant’s credit standing proved satisfactory, and which did so prove, so far as this record discloses, the plaintiff had no right or authority 25 days thereafter to change or alter the contract by its letter of October 25, 1907, by notifying as to acceptance and shipment of part of the goods and declining to ship the rest because withdrawn from sale during the credit investigation, and which was no doubt done for the obvious reason that the omitted articles had enhanced in price between the original acceptance and the attempted modification of the contract.

[2] The case of Lawrenceburg Mills v. Jones & Co., 204 Ala. 59, 85 South. 719, in no wise conflicts with this holding. There the order was sent in subject to seller’s acceptance, and it was accepted with the reservation or condition that shipments should be *652 subject to seller’s option. Nor do we question the soundness of the proposition that when an offer or order is made and the acceptance is coupled with a material change and the contract as thus modified is accepted or the goods are accepted, that there is a new contract, and the vendee cannot rely upon his original offer as constituting the contract. But here we have no modification in the acceptance or counter offer, but an acceptance of the order, provided the defendant’s credit standing is found to be satisfactory and an attempted modification of the order 25 days after the acceptance of same.

Tiie trial court did not err in refusing the plaintiff’s requested charges 1, 2, and 3. They are, in effect, affirmative instructions against the defendant’s cross-demand for a breach of the contract.

The judgment of the Circuit Court is affirmed.

Affirmed.

SAYRE, GARDNER, and MILLER, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.