Ferrier v. Storer

• Decision Date: 25 April 1884
• Citation: 19 N.W. 288,63 Iowa 484
• Parties: FERRIER v. STORER
• Court: Iowa Supreme Court

19 N.W. 288

63 Iowa 484

FERRIER v. STORER

Supreme Court of Iowa, Dubuque

April 25, 1884

Appeal from Cero Gordo Circuit Court.

ACTION UPON AN ACCOUNT. The defendant pleaded a general denial. He also, by way of counter-claim, pleaded that the plaintiff was indebted to him for interest on money loaned, for the use of certain land, for money paid to remove an incumbrance from land purchased of plaintiff, for labor and lumber furnished plaintiff, and for an overpayment for land. There was a trial to a jury, and verdict and judgment were rendered for the defendant for $ 208.65. The plaintiff appeals.

REVERSED.

Glass & Hughes, for appellant.

Stanberry & Clark, for appellee.

OPINION

ADAMS, J.

I.

The first question arises upon an instruction pertaining to interest charged plaintiff by defendant. The interest charged is for $ 300, alleged to have been loaned to plaintiff by defendant on the 29th day of May, 1871. The defendant denies the loan. The undisputed fact is that the plaintiff had that sum in his hands at that time, which the defendant had sent him to invest in land. Not finding an immediate opportunity to make such investment, the plaintiff wrote to the defendant, proposing to borrow it and pay him ten per cent interest. The defendant replied, accepting the offer. The plaintiff did not in fact use the money, and it was afterwards applied in payment for land purchased by defendant. The plaintiff's position that he did not borrow the money does not rest upon the fact that he did not use it. It rests upon the alleged fact that, notwithstanding the defendant's reply accepting the plaintiff's offer, the acceptance was not fully within the terms of the offer, and, in addition, that the reply was not made within a reasonable time.

The court seems to have thought that the acceptance was sufficiently within the terms of the offer, and, while it seems to have had some doubt as to whether the reply was made in time to necessarily constitute a contract, it held that it did so, unless the plaintiff immediately upon the receipt thereof notified the defendant that he had withdrawn his offer. The instruction given is in these words: "The letters given in evidence, one from plaintiff to defendant proposing to defendant to use defendant's money in plaintiff's hands and allow him interest at the rate of ten per cent, and the other from defendant to plaintiff accepting the proposal, or consenting to plaintiff's use of the money, if written by the respective parties, would constitute a written contract between them as to that matter binding on both, unless the plaintiff, immediately on the receipt of the defendant's letter, gave notice to the defendant that he had withdrawn his offer, or declined to accept the money as a loan." The giving of this instruction is assigned as error.

The plaintiff's letter containing his offer bears date, "Lincoln, May 1, 1871. The offer is in these words: "I want to say to you, if you was coming out here in the fall, I will use your money until you come, and give you ten per cent for it. I have a payment to make on my place before a great while, and it will accommodate me until after harvest. Please let me know as soon as you find it convenient." The defendant in his answer, dated, Depere, Wis., May 29, 1871," said: "You spoke of the money I sent being useful to you for making a payment on your place. You can use it for that purpose on your own terms mentioned in your last, as I have no other use for it, but I do not like it to lie idle, as it does not pay."

The position taken by plaintiff, that the acceptance was not made within the terms of the offer, rests upon the fact that the offer contains the words: "If you was coming out here in the fall," and the acceptance makes no reference to such condition. To this we have to say that it does not appear to us that we can give the words the force of a condition. They seem to have been used rather as an introduction to, or reason for, the plaintiff's proposal, and not as essentially concerning any object which the plaintiff was desiring to secure. In our opinion, the acceptance was substantially within the terms of the offer.

II. In the instruction the court ruled, in effect, that the acceptance became binding upon the parties, unless the plaintiff immediately notified the defendant that he had withdrawn his offer. The rule now supported by the great preponderance of authority, and almost, if not quite universally adhered to, is that, when a proposal is accepted by letter, the contract is deemed to become complete when the letter is mailed, provided the offer is standing, and the acceptance is made within a reasonable time. Moore v. Pierson, 6 Iowa 279; Mactier's Admr's v. Frith, 6 Wend. 103; Brisban v. Boyd, 4 Paige Ch. 17; Tayloe v. Merchants' Fire Ins. Co., 9 HOW 390, 13 L.Ed. 187; Hallock v. Ins. Co., 2 Dutch. 268; Adams v. Lindsell, 1 Barn. & Ald. 681; Potter v. Sanders, 6 Hare 1. The contract is deemed complete when the letter is mailed, because the mailing constitutes the overt act by which the acceptance is manifested. In Hallock v. Ins. Co., above cited, Vrendenburgh, J., speaking of the overt act by which acceptance is manifested, said: "The overt act may be as various as the form and nature of contracts. It may be by the fall of the hammer, by words spoken, by letter, by telegraph * * *. The acceptor can no more overtake and countermand his letter mailed than he can his words of acceptance after they have issued from his lips." And he ...