Cole-McIntyre-Norfleet Co. v. Holloway
| Decision Date | 12 June 1919 |
| Citation | 214 S.W. 817,141 Tenn. 679 |
| Parties | COLE-MCINTYRE-NORFLEET CO. v. HOLLOWAY. |
| Court | Tennessee Supreme Court |
Response to Petition to Rehear, September 20, 1919.
Error to Circuit Court, Shelby County; J. P. Young, Judge.
Action by A. S. Holloway against the Cole-McIntyre-Norfleet Company. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which affirmed, and defendant brings error. Writ denied.
D. B Sweeney, of Memphis, for plaintiff in error.
P. J Lyons and Jno. E. Bell, of Memphis, for defendant in error.
This case presents a question of law, which, so far as we are advised, has not been decided by this court in its exact phases. March 26, 1917, a traveling salesman of plaintiff in error solicited and received from defendant in error, at his country store in Shelby county, Tenn., an order for certain goods, which he was authorized to sell. Among these goods were 50 barrels of meal. The meal was to be ordered out by defendant by the 31st day of July, and afterwards 5 cents per barrel per month was to be charged him for storage.
After the order was given, the defendant heard nothing from it until the 26th of May, 1917, when he was in the place of business of plaintiff in error, and told it to begin shipment of the meal on his contract. He was informed by plaintiff in error that it did not accept the order of March 26th, and for that reason the defendant had no contract for meal.
The defendant in error never received confirmation or rejection from plaintiff in error, or other refusal to fill the order. The same traveling salesman of plaintiff in error called on defendant as often as once each week, and this order was not mentioned to defendant, either by him or by his principals in any way. Between the day of the order and the 26th of May the day of its alleged rejection, prices on all of the articles in the contract greatly advanced. All of the goods advanced about 50 per cent. in value.
Some jobbers at Memphis received orders from their drummers, and filled the orders or notified the purchaser that the orders were rejected; but this method was not followed by plaintiff in error.
The contract provided that it was not binding until accepted by the seller at its office in Memphis, and that the salesman had no authority to sign the contract for either the seller or buyer. It was further stipulated that the order should not be subject to countermand.
It will be observed that plaintiff in error was silent upon both the acceptance and rejection of the contract. It sent forth its salesman to solicit this and other orders. The defendant in error did not have the right to countermand orders and the contract was closed, if and when it was accepted by plaintiff in error. The proof that some jobbers in Memphis uniformly filled such orders unless the purchaser was notified to the contrary is of no value because it does not amount to a custom.
The case, therefore, must be decided upon its facts. The circuit court and the court of civil appeals were both of opinion that the contract was completed because of the lapse of time before plaintiff in error rejected it. The time intervening between the giving of the order by defendant and its alleged repudiation by plaintiff in error was about 60 days. Weekly opportunities were afforded the salesman of plaintiff in error to notify the defendant in error of the rejection of the contract, and, of course, daily occasions were afforded plaintiff in error to notify him by mail or wire. The defendant believed the contract was in force on the 26th of May, because he directed plaintiff in error to begin shipment of the meal on that day. Such shipments were to have been completed by July 31st, or defendant to pay storage charges. From this evidence the Circuit Court found as an inference of fact that plaintiff in error had not acted within a reasonable time, and therefore its silence would be construed as an acceptance of the contract. The question of whether the delay of plaintiff in error was reasonable or unreasonable was one of fact, and the circuit court was justified from the evidence in finding that the delay was unreasonable. Hence the case, as it comes to us, is whether delay upon the part of plaintiff in error for an unreasonable time in notifying the defendant in error of its action upon the contract is an acceptance of its terms.
We think such delay was unreasonable, and effected an acceptance of the...
To continue reading
Request your trial
-
Burton v. Warren Farmers Co-Op.
...may be manifested, in whole or in part, by the parties' spoken words or by their actions or inactions. Cole-McIntyre-Norfleet Co. v. Holloway, 141 Tenn. 679, 685, 214 S.W. 817, 818 (1919); Restatement (Second) of Contracts § 19(1) (1979). It should not, however, be inferred from the unilate......
-
Peter Hendrickson v. International Harvester Company of America
... ... We are aware that there are ... authorities to the contrary, but the rule we adopt is ... supported by Cole McIntyre-Norfleet Co. v ... Holloway, 141 Tenn. 679, 214 S.W. 817, 7 A. L. R ... 1683; Peterson v. Graham-Brown Shoe Co ... (Tex. Civ. App.), 210 S.W. 737; and Blue Grass Cordage ... ...
-
Sevier Cnty. Sch. Fed. Credit Union v. Branch Banking & Trust Co.
...or inactions." Burton v. Warren Farmers Co-op , 129 S.W.3d 513, 521 (Tenn. Ct. App. 2002) (citing Cole-McIntyre-Norfleet Co. v. Holloway , 141 Tenn. 679, 214 S.W. 817, 818 (1919) ); see also Moody Realty Co., Inc. v. Huestis , 237 S.W.3d 666, 674 (Tenn. Ct. App. 2007) ("The parties' actions......
-
Rubio v. Carreca Enters., Inc.
...or inactions." Burton v. Warren Farmers Co-op , 129 S.W.3d 513, 521 (Tenn. Ct. App. 2002) (citing Cole-McIntyre-Norfleet Co. v. Holloway , 141 Tenn. 679, 214 S.W. 817, 818 (1919) ); see also Moody Realty Co., Inc. v. Huestis , 237 S.W.3d 666, 674 (Tenn. Ct. App. 2007) ("The parties’ actions......