Ammons v. Wilson & Co

• Decision Date: 26 October 1936
• Docket Number: 32276
• Citation: 176 Miss. 645,170 So. 227
• Parties: AMMONS v. WILSON & Co
• Court: Mississippi Supreme Court

170 So. 227

176 Miss. 645

AMMONS v. WILSON & Co

No. 32276

Supreme Court of Mississippi

October 26, 1936

Division B

Suggestion Of Error Overruled December 7, 1936.

APPEAL from the circuit court of Bolivar County, HON. W. A. ALCORN JR., Judge.

Action by R. L. Ammons against Wilson & Co. From a judgment in favor of the defendant, the plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Sillers & Roberts, of Rosedale, for appellant.

An option contract to buy or sell, as in the case of other contracts, must be supported by a valuable consideration. Where, however, the option constitutes one of the terms of a sales contract, an independent consideration for the option is not necessary, for if the consideration for such contract is sufficient, it will support the subsidiary promise. If the option is given without a consideration, it is a mere offer of a contract of sale, which is not binding until accepted. If, however, acceptance is made before a withdrawal, it constitutes a binding contract of sale, although the option was not supported by a sufficient consideration.

55 C. J. 109, sec. 69.

If the court is to consider the act of appellant in giving these specifications to Mr. Tweedy as an order rather than as an acceptance of an offer, then there was imposed on appellee the duty to either accept or reject the orders and if it failed to reject them within a reasonable period of time it would constitute an acceptance thereof.

It is true that in order to make a binding contract an offer must be accepted but this acceptance can be in a number of ways, and it is not necessary that it be communicated to the one making the offer.

Hercules Manufacturing Co. v. Wallace, 124 Miss. 27, 87 So. 766.

This acceptance might be by silence or inaction where there is a duty to speak.

Such silence and inaction on the part of the offeree constitutes an acceptance of the offer.

55 C. J. 95, sec. 60; Hendrickson v. International Harvestor Co. of America, 135 A. 702; Peterson v. Graham-Brown Shoe Co., 210 S.W. 737.

This identical question has never been before the Supreme Court of Mississippi, so far as we have been able to find; however, a case very nearly in point is the case of L. A. Becker Co. v. Clardy, 51 So. 211, 96 Miss. 301.

In the case at bar there could hardly be any question as to the appellee having longer than September 4th in which to reject the orders. As shown by the record the custom was that the goods would be shipped so as to be received by appellant within a week. In this case the orders were given on August 23rd and when not received on September 4th (a period of twelve days from the date the orders were given) appellant wired appellee and was advised that the goods would not be shipped. This advice was only given by appellee after it had been requested by appellant to let the goods come forward.

In the case of Bluegrass Cordage Co. v. Luthy, 98 Ky. 583, 33 S.W. 835, the Supreme Court of Kentucky in a similar case held that where a similar order was not rejected until twelve days after submission thereof to it that it constituted an acceptance thereof.

Where there has been a course of dealing between an individual and the salesman of a seller and the seller has recognized the salesman as its salesman and has accepted the salesman's orders and made shipment thereon, and the salesman submits orders to the seller, it is clearly the duty of the seller to communicate a rejection of the order to the purchaser, otherwise the orders are deemed in law to be accepted.

Cole-McIntyre-Norfleet Co. v. Halloway, 141 Tenn. 679, 214 S.W. 817; Restatement of the Law of Contracts, page 77, sec. 72.

Even if an estoppel must be shown on appellee in order for there to have been an acceptance of the orders, we think there was an estoppel, and there was a mutuality of obligation between the parties. In previous dealings between the parties the goods had been shipped so as to be received within a week. Therefore, at the end of one week from the time the orders were placed with appellee a binding contract resulted and there was a mutuality of obligation between the parties for they were both bound, and after that time should either one fail to carry out the terms of the contract the other had the right to sue for breach of contract, and we venture, to say that had the price of shortening gone down from seven and one-half cents to five cents a pound instead of going up from seven and one-half cents to nine cents a pound, and the appellant had declined to accept the shortening, the appellee would have been suing here instead of the appellant.

Hercules Manufacturing Co. v. Wallace, 124 Miss. 27.

Shands, Elmore, Hallam & Causey, of Cleveland, for the appellee.

Tweedy, traveling salesman or drummer of Wilson & Company, had no authority to make any binding offer, acceptance, or contract on behalf of Wilson & Company.

It is not even contended that Tweedy had actual authority to bind the appellee Wilson & Company in this case. We say that, under the decisions of the Supreme Court of Mississippi, Tweedy had no implied authority to bind appellee, and further, that any remote conception which Ammons might inconceivably have had that Tweedy was vested with implied authority, was legally dissipated and dissolved when the orders or offers to contract with reference to the shortening herein involved, of which Ammons was given and retained copies, contained the provision that the order was taken subject to the appellee's acceptance. This was clear, unambiguous and unequivocal notice to Ammons that Tweedy had no such authority to either accept an offer on behalf of Wilson & Company, or to make an offer for it, or to agree when the goods would be shipped.

Planters Lbr. Co. v. Sibley, 130 Miss. 26; Becker v. Clardy, 96 Miss. 301; Savings Bank v. Grocery CO., 123 Miss. 443; Fairbanks Morse Co. v. Dale, 172 Miss. 271.

The provisions in the orders "this order taken subject to acceptance by sellers authorized agent at point of shipment" is valid and binding upon appellant.

Dahnke-Walker Milling Co. v. Phillips, 117 Miss. 204; Wellford & Withers v. Arnold, 162 Miss. 786; Perkins v. Maurepas Milling Co., 88 Miss. 804.

The booking of shortening did not constitute an offer from appellee to sell all or any part of sixty thousand pounds, and which Ammons accepted by giving the specifications or orders.

In order to effect a binding contract between the parties, there must be an offer made by the offeror, and an acceptance by the offeree, of the exact terms of the offer. The minds of the parties must meet on one and the same purposes.

Murphree v. National Life & Accident Ins. Co., 168 Miss. 667.

Appellant submits that it is the rule in Mississippi that the court will not make a contract between the parties, if they themselves have never made one.

From an examination of that portion of appellant's brief, wherein it contends that the appellee's silence constituted an acceptance, it appears that appellant bases such contention upon the ground of estoppel, that is, that the alleged holding out of Tweedy, and the alleged filling of prior orders, created a duty upon appellee to accept or reject the offer and notify Ammons of its action or decision, and that failing so to do, remaining silent for a period of time from August 23rd, and 24th, to September 4th, constituted an implied acceptance of the offer by estoppel. Appellee denies such a contention, submits that same is utterly unfounded, and says that appellee had a perfect right to remain silent, just as it did.

There is no testimony in the record as to the condition or circumstances under which the prior orders or offers were made or submitted by Ammons; no testimony as to when the bookings were, and when the specifications were submitted; no testimony as to on what or in what manner the specifications were submitted. Therefore, there is an utter lack of any testimony describing prior dealings by or with which to compare the dealings involved in the case at bar.

Regardless of what the prior negotiations were, when they were, how they were, and on what basis they were, the positive testimony appearing in this record shows that the orders or offers here involved in the form of specifications were made in writing according to their terms as shown by the record.

It is the position of appellee that its silence upon receiving the offers of Ammons and its failure to act thereon, did not constitute an acceptance actual, or implied, of such offer, creating an acceptance by estoppel.

Couret v. Conner, 118 Miss. 374.

Appellee submits that no estoppel can arise against it upon this record, because there was never, at any time, any mutuality between Ammons and it. Ammons was never bound, but could have withdrawn his offer at any time.

Y. & M. V. R. R. Co. v. Jones, 114 Miss. 784.

We submit that the minds of Ammons and Wilson & Company never met.

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