Opinion
June Term, 1864
Daniel Wood, for the appellant.
J. Van Voorhis, for the respondent.
If there was an agreement entered into by the defendant to deliver 500 pounds or any other quantity of carrot seed, that agreement was with Rapelje Co., and not with the plaintiffs, unless the defendant accepted the order drawn by R. Co., in favor of the plaintiffs. It was the acceptance, and the acceptance alone, that gave the plaintiffs a right of action. The original agreement has never been transferred to the plaintiffs. The right of action for its breach passed to the assignee of R. Co., by the assignment for the benefit of their creditors, or remains in them.
The important and indeed the only question in the case is did the defendant accept the order? The court below did not in terms find an acceptance, but it found facts from which it is said acceptance may be inferred. These were the retention of the order; the subsequent recognition of it, in the defendant's letter of the 4th of October, 1855, and in the conversation in January, 1856. But none of these, nor all of them combined, prove an acceptance.
Retention of an order may, unexplained, justify an inference of acceptance, but in this case any such inference is rebutted by the letter of the 4th of October. In that letter the defendant distinctly informs the plaintiffs that he could not then fill the order but he would try and send some or all of it in the course of two or three weeks. If this letter is relied upon the plaintiffs must take the acceptance as given, and that acceptance was to try to deliver in two or three weeks a part or the whole of the carrot seed. This is no acceptance of the order. There is no promise to deliver at any time any quantity of seed.
This letter is to be treated rather as an offer of new conditions, upon which the defendant expresses his willingness to try to deliver all or part of the seed. But, if it is thus considered, then it was incumbent on the plaintiffs to notify the defendant of their acceptance of the proposed terms. This they never did, but insisted on the letter as an acceptance of the order, and claimed damages by reason of the non-delivery of the seed.
There was nothing in the interview of January, 1856, evincing an intention to accept the order unless upon conditions which the plaintiffs refused to assent to. The learned judge finds he recognized the order by stating that it was good. But a recognition of the goodness of the order is not an acceptance; particularly in view of the fact that he declared, at the same time, his inability to deliver the property unless the plaintiffs would wait till he could import it. They declining to wait relieved the defendant from any liability upon his offer.
Had this been a bill for the payment of money, and transmitted to the defendant for acceptance, the retention of the bill would not have justified the inference of an acceptance, either in this country or in England, before the passage of the statutes requiring acceptances of bills to be in writing. Chitty, in his work on Bills, (8th American [Springfield] Edition, 324,) says: "An acceptance may also, as to foreign bills, (except those drawn on France, when a written signed acceptance is required,) be implied as well as express; and it is said that it may be inferred from the drawer's keeping the bill a great length of time, or by any other act which gives credit to the bill and induces the holder not to protest it, or is intended as a surprise upon him and to induce him to consider the bill as accepted. But it should seem that the mere detention of a bill for an unreasonable time by the drawer will not amount to an acceptance."
In Story on Bills, section 246, it is said, keeping a bill which is sent to the drawee for acceptance, a considerable length of time without returning any answer, may, under circumstances, be treated as an acceptance; especially if, when sent, the drawee is informed that his so keeping it without returning any answer will be deemed an acceptance. But as such conduct is equivocal, unless circumstances of a stringent character, such as those above stated, occur, the mere keeping of the bill will not be held to amount to an acceptance. (See also Edwards on Bills, 417, 418).
The rules governing bills of exchange are at least as liberal as those which govern orders for the delivery of personal property, and if the acts proved in this case would not constitute an acceptance of a bill, they would not constitute the acceptance of an order.
Orders for the delivery of personal property do not require any acceptance. They are usually satisfied by a delivery of the property on presentation; and hence it is that possession of such an order, unexplained, is evidence that the drawee has paid it. (1 Cowen Hill's Notes, 315; Alvord v. Baker, 9 Wend. 323.) But there is no such presumption of payment of orders for the payment of money. The presumption in such cases is that the order is drawn on moneys owing by the drawee to the drawer. (See authorities last cited.)
The holder of an order for the delivery of personal property may require an acceptance in writing of the order; and when he does require it, the drawee is bound so to accept. The same considerations that render proper the acceptance of a bill or draft in writing, apply with equal force to orders. The holder, until acceptance, has no claim upon or remedy against the drawee, and hence the relations between the holder and drawee are left depending on the acceptance or non-acceptance of the order. Again, the holder is entitled to have the evidence of the acceptance in writing, so far as to relieve him from the difficulties of proof attending a mere verbal or implied acceptance.
If the property is in esse, which is required to be delivered, and is ready for delivery, the order is usually accepted by an immediate delivery of the property, or compliance with the order is at once refused.
In this case the plaintiffs did not ask or expect a written acceptance of the order. They sent it forward in the expectation that the property would be at once forwarded, or notice given that it would not be delivered. The defendant declined to accept, and at once notified the plaintiffs of his determination, unless they would accept the conditions which he proposed. This they did not do. After this, retention of the order could have no effect on the relation of the parties.
I cannot agree with the learned judge who delivered the opinion of the court below, that there was no consideration for the acceptance of the order, if it was in fact accepted. If there was a valid contract between Rapelje Co., and the defendant by which each agreed to sell and deliver to the other, garden seeds, the promise of the one party was a sufficient consideration for the promise of the other. And Rapelje Co., could have maintained an action for the breach of the contract. It was not necessary that there should be a consideration moving from the plaintiffs to the defendant in order to support an acceptance of the order. In this case, as in all cases of bills of exchange, the consideration for the acceptance moves between the drawer and drawee, and not between holder and acceptor.
Had the court below put their decision upon the ground that there was not sufficient evidence of an agreement between R. Co. and the defendant for the sale by the latter to the former of any quantity of garden seeds, I should have concurred with them. When persons engaged in the business of seed-raising visit dealers in the different parts of the state to ascertain whether any and what quantity of seeds will be required for the ensuing season, it is not expected or intended, I apprehend, by either party that when the country dealer indicates the quantity he will want, a binding contract is thereby made, on the one side to deliver, and on the other to receive the seeds so ordered. It is to be taken rather as an offer by each to the other, and which each may recall at any time before it is accepted. When the contract relied on in this case was made, the defendant had not threshed his carrot seed, and could not, therefore, know whether he would have 1,000 pounds of seed to deliver to any person, and it would be absurd to suppose that R. Co., dealers in the article, supposed that the defendant obligated himself to deliver to them the quantity indicated, or pay them damages for the omission to deliver.
But there being no acceptance of the draft, this action must fail, whatever might be our views as to the validity of the contract between R. Co. and the defendant; and, therefore, the order for a new trial must be affirmed, and judgment absolute rendered for the defendant, with costs.
All the judges concurring, judgment affirmed.