§ 64. (Contracts, Sec. 32.) Silence as acceptance. Case 56. Hobbs v. Massasoit Whip Company, 158 Mass. 194. Facts: Plaintiff, Hobbs, had sent eel skins to the defendant, on several different occasions, and had been paid for them. He then sent the eel skins in question, and received no reply from the Company which kept them for several months till they became worthless. Plaintiff then sued for the price. The defendant claims there was no contract and that having no contract with the plaintiff it was under no duty to go to the expense and trouble of notifying him of the rejection of skins which it had never ordered and did not want or make use of. Plaintiff claims that owing to his prior relations with the defendant, the defendant was under obligations to notify him of its rejection and that its failure so to do was evidence of its acceptance from which a jury might properly find a contract. Point Involved: May silence by an offeree who is in receipt of goods from the offeror, be considered as an acceptance of the offer if the prior dealings of the parties have been such that the offeror is justified in believing that he will be notified if there is a rejection of his offer? HOLMES, J.: "This is an action for the price of eel skins sent by the plaintiff to the defendant, and kept by the defendant some months, until they were destroyed. It must be taken that the plaintiff received no notice that the defendant declined to accept the skins. The case comes before us on exceptions to an instruction to the jury, that, whether there was any prior contract or not, if the skins are sent to the defendant, and it sees fit, whether it has agreed to take them or not, to lie back, and to say nothing, having reason to suppose that the man who has sent them believes that it is taking them, since it says nothing about it, then, if it fails to notify, the jury would be warranted in finding for the plaintiff. "Standing alone, and unexplained, this proposition might seem to imply that one stranger may impose a duty upon another, and make him a purchaser, in spite of himself, by sending goods to him, unless he will take the trouble, and be at the expense, of notifying the sender that he will not buy. The case was argued for the defendant on that interpretation. But, in view of the evidence, we do not understand that to have been the meaning of the judge, and we do not think that the jury can have understood that to have been his meaning. The plaintiff was not a stranger to the defendant, even if there was no contract between them. He had sent eel skins in the same way four or five times before, and they had been accepted and paid for. On the defendant's testimony, it is fair to assume that, if it had admitted the eel skins to be over twenty-two inches in length, and fit for its business, as the plaintiff testified, and the jury found that they were, it would have accepted them; that this was understood by the plaintiff; and, indeed, that there was a standing offer to him for such skins. In such a condition of things, the plaintiff was warranted in sending the defendant skins conforming to the requirements, and even if the offer was not such that the contract was made as soon as skins corresponding to its terms were sent, sending them did impose on the defendant a duty to act about them; and silence on its part, coupled with a retention of the skins for an unreasonable time, might be found by the jury to warrant the plaintiff in assuming that they were accepted, and thus to amount to an acceptance. See Bushnell v. Wheeler, 15 Q. B. 442; Benjamin on Sales, 162, 164; Taylor v. Dexter Engine Co., 146 Mass. 613, 615. The proposition stands on the general principle that conduct which imports acceptance or assent is acceptance or assent in the view of the law, whatever may have been the actual state of mind of the party,-a principle sometimes lost sight of in the cases. * Question 56: (1) Did the court hold that silence was in itself acceptance in this case, or evidence of acceptance, for the jury to pass upon? Ordinarily could an offeror infer acceptance from the mere silence of the offeree? (2) D ordered certain goods to be delivered on certain dates. P changed the dates and returned the order to D. D received the changed order and made no reply. P afterwards sued D for breach of contract. Is there a contract? (Drucker v. Oppenheimer, 165 N. Y. § 284.) Case 57. Cole-McIntyre-Norfleet Co. v. A. S. Holloway, 141 Tennessee Reports, 679, 214 S. W. 817, 7 A. L. R. 1683. Facts: Stated in the opinion. Point Involved: Whether silence by a firm upon an order received by a traveling salesman, whose authority is merely to communicate such offers to his house for acceptance, constitutes acceptance by such house. LANSDEN, Ch. J., delivered the opinion of the court: "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, Tennessee, an order for certain goods, which he was authorized to sell. Among these goods were fifty 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 of 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 sixty 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 contract. It should not be forgotten that this is not the case of an agent exceeding his authority, or acting without authority. Even in such cases the principal must accept or reject the benefits of the contract promptly and within a reasonable time. Williams v. Storm, 6 Coldw. 207. "Plaintiff's agent in this case was authorized to do precisely that which he did, both as to time and substance. The only thing which was left open by the contract was the acceptance or rejection of its terms of plaintiff in error. It will not do to say that a seller of goods like these could wait indefinitely to decide whether or not he will accept the offer of the proposed buyer. This was all done in the usual course of business, and the articles embraced within the contract were consumable in the use, and some of them would become unfitted for the market within a short time. ance. "It is undoubtedly true that an offer to buy or sell is not binding until its acceptance is communicating to the other party. The acceptance, however, of such an offer, may be communicated by the other party either by a formal acceptance, or acts amounting to an acceptDelay in communicating action as to the acceptance may amount to an acceptance itself. When the subject of a contract, either in its nature or by virtue of conditions of the market, will become unmarketable by delay, delay in notifying the other party of his decision will amount to an acceptance by the offerer. Otherwise, the offerer could place his goods upon the market, |