Opinion
6 Div. 844.
April 26, 1923.
Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.
Weatherly, Birch Hickman, of Birmingham, for appellant.
Where one makes an offer with certain terms on condition, and accepts an acceptance which is not responsive to the proposal, he is bound by the contract thus made and cannot fall back on his proposal. 9 Cyc. 269; Hart v. Bray Bros., 50 Ala. 446; Sanford v. Harvard, 29 Ala. 684, 68 Am. Dec. 101; Kenan v. Lindsay, 127 Ala. 270, 28 So. 570; Hodges v. Sublett, 91 Ala. 588, 8 So. 800; Iron Works v. Douglas, 49 Ark. 355, 5 S.W. 585. The appellant could not be bound, except upon a contract made in strict compliance with the statute. Board of Education v. Watts, 95 So. 498.
Ritter, Wynn Carmichael, of Birmingham, for appellee.
Where a proposal is made in writing, and is accepted either verbally or by acting on it, the contract is a written one. In order to constitute a written contract, it is not necessary, that both parties sign the same. 9 Cyc. 300; Kenan v. Lindsay, 127 Ala. 270, 28 So. 570; W. C. R. Co. v. Locket, 7 Ala. 772; Cassells' Mill v. Strater Bros., 166 Ala. 274, 51 So. 969. The written contract provided for delivery f. o. b. Wilmington, N.C., and for prices f. o. b. that place. 35 Cyc. 174; Capehart v. Furman Farm Imp. Co., 103 Ala. 671, 16 So. 627, 49 Am. St. Rep. 60; Sheffield Fur. Co. v. Hull Coal Coke Co., 101 Ala. 446, 14 So. 672.
In Kenan v. Lindsay, 127 Ala. 270, 272, 273, 28 So. 570, 572, this court said:
"It is common learning, extracted from the books, that all express contracts resolve themselves into an offer by one of the parties and an acceptance by the other; that the act of acceptance closes the contract, and ordinarily nothing further is required to make the obligations effective; that the parties must understand alike; their contract must afford a complete expression of the meeting of their minds, and leave no material element unexpressed; and that the agreement becomes obligatory from the moment the minds of the parties meet. 7 Am. Eng. Encyc. Law (2d Ed.) 125, 134, 138; Hodges v. Sublett, 91 Ala. 588; Horst v. Moses, 48 Ala. 140; Sanford v. Howard, 29 Ala. 684."
See Sturdivant v. Mt. Dixie S. L. I. Co., 197 Ala. 280, 72 So. 502; Huntsville Gro. Co. v. Johnson, 13 Ala. App. 488, 69 So. 967.
It was not necessary that a written "bid" or proposal (as that by the Cement Products Company) be signed by both parties to be bound. The signature of the one, the acceptance of the bid by the other, followed by shipment and delivery of the articles and their acceptance, will constitute the binding executed contract. Wetumpka Coosa R. R. Co. v. Hill, 7 Ala. 772; Cassells' Mill v. Strater Bros. Grain Co., 166 Ala. 274, 284, 51 So. 969.
The written "bid" or contract "accepted" by the defendant provided for the delivery f. o. b. Wilmington, N.C., for the price of $102. The court judicially knows that "f. o. b." in contracts of sale, where the property sold is to be transported, means placed on board the cars at a certain place named in the contract. The evidence convinces us that the place of such delivery of the property in question was Wilmington, N.C. Sheffield Furnace Co. v. Hull, 101 Ala. 446, 14 So. 672; Capehart v. Freeman Farm. Imp. Co., 103 Ala. 671, 16 So. 627, 49 Am. St. Rep. 60.
The letter of date of April 27, 1920, to Kitchens, was not sufficient to overturn the acceptance by the county board of education of the written "bid" or proposal of the Cement Products Company for the "tank outfits" in question, as it was according to the terms outlined in the Cement Products Company's said written "bid" of date of April 22, 1920, which was before the county board of education, or was available for their inspection, that favorable action was taken thereon.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.