Brauer v. Shaw

• Decision Date: 29 March 1897
• Citation: 46 N.E. 617,168 Mass. 198
• Parties: BRAUER et al. v. SHAW et al. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 198

46 N.E. 617

BRAUER et al. v. SHAW et al. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

March 29, 1897

COUNSEL

H.M. Rogers, for plaintiffs.

B.L.M Tower, for defendants.

OPINION

HOLMES J.

These are two actions of contract on alleged contracts letting all the cattle-carrying space on the Warren Line of steamships for the May sailings from Boston to Liverpool, the first contract at the rate of 50 shillings a head, the second and alternative contract at 52 shillings and 6 pence. As we are all of opinion that, for one reason or another, the right to recover upon the first contract is not made out, it may be stated shortly. On April 15, 1892, after earlier correspondence, the defendants wrote, stating terms, saying that they had telegraphed that they "would probably accept 50s. if reply promptly," referring to an answer asking to have the space kept until noon the next day, and to their reply that they would "try to keep the space for you," and adding that there were several customers, and that they should feel "duty bound to let it to the first man making the best offer." The plaintiffs' agents telegraphed at 53 minutes past 8 the next morning, making a modified offer. Whether they had received the above letter does not appear. The defendants answered, "Referring our letter yesterday, first offer for number named has preference, three parties considering. Wire quick if you want it." This was received in the New York telegraph office at 15 minutes past 10. At 20 minutes past 10 the plaintiffs' agents telegraphed, "Have closed all your May spaces as per letter," etc. This is relied on as making the contract. It does not appear whether the telegram which arrived only 5 minutes before had been received. If not, and, if the last telegram was in answer to the letter only, the plaintiffs would encounter the question whether the letter contained an absolute offer or only invited one, and, if the former, whether the offer had not been rejected by the modified offer in the first telegram mentioned. However this may be, the parties did not stop at the point which we have reached, but went on telegraphing as we shall state; so that, if there was any moment when a contract had been made, the parties assumed the contrary, and continued their bargaining. Either no contract had been made thus far, or it was discharged by the conduct of the parties. It was treated as discharged in a letter of the plaintiffs' agents written later on the same day.

We come, then, to the later telegrams of the same day, which are relied on as making the second contract. At half past 11 the defendants telegraphed, "Subject prompt reply, will let you May space, fifty-two six." This was received in New York at 16 minutes past 12, and at 28 minutes past 12 a reply was sent accepting the offer. For some reason this was not received by the defendants until 20 minutes past 1. At 1 the defendants telegraphed, revoking their offer, the message being received in New York at 43 minutes past 1. The plaintiffs held the defendants to their bargain, and both parties stand upon their rights.

There is no doubt that the reply was handed to the telegraph company promptly, and, at least, it would have been open to a jury to find that the plaintiffs had done all that was necessary on their part to complete the contract. If, then the offer was outstanding when it was accepted, the contract was made. But the offer was outstanding. At the time when the acceptance was received, even, the revocation of the offer had not been received. It seems to us a reasonable requirement that, to disable the plaintiffs from accepting their offer, the defendants should bring home to them actual notice that it has been revoked. By...