Opinion
1 Div. 26.
March 22, 1932.
Appeal from Circuit Court, Mobile County; Alex T. Howard, Judge.
Action for breach of contract by A. U. Dekle, doing business as the Star Produce Company, against the American Fruit Growers, Inc. From a judgment for defendant, plaintiff appeals.
Affirmed.
Outlaw Seale, of Mobile, for appellant.
When definite instructions are given by the principal to the broker to sell goods for him at a certain specified price for a certain time and day only, this will not authorize the broker to contract and sell at a different and subsequent time for the same price. Story on Agency, 32; Rosenstock v. Tormey, 32 Md. 169, 3 Am. Rep. 125; Clark v. Cumming, 77 Ga. 64, 4 Am. St. Rep. 72; 9 C. J. 524. When a contract is made by telegrams, offering and accepting a stated proposition, the date and hour of the telegram of acceptance is the date and hour of the contract. Western Union Tel. Co. v. Way, 83 Ala. 542, 4 So. 844. The affirmative charge should not be given when any material fact rests in inference, or where there is a conflict in the evidence. Anderson v. Timberlake, 114 Ala. 377, 22 So. 431, 62 Am. St. Rep. 105; Day v. Adcock, 11 Ala. App. 471, 66 So. 911; Henry v. McNamara, 114 Ala. 107, 22 So. 428; Liverpool London Globe Ins. Co. v. McCree, 213 Ala. 534, 105 So. 901.
Inge, Stallworth Inge, of Mobile, for appellee.
To constitute a contract, there must be a definite unconditional acceptance of the offer made. Manier v. Appling, 112 Ala. 663, 20 So. 978; Courtney Shoe Co. v. E. W. Curd Son, 142 Ky. 219, 134 S.W. 146, 38 L.R.A. (N.S.) 903; Cheboygan Paper Co. v. Swigart Paper Co., 140 Ill. App. 314; Krohn-Fechheimer Co. v. Palmer, 282 Mo. 82, 221 S.W. 353, 10 A.L.R. 673; Strong Trowbridge Co. v. H. Baars Co., 60 Fla. 253, 54 So. 92; Webster Lbr. Co. v. Lincoln, 94 Fla. 1097, 115 So. 498. Failure of an agent to carry out instructions of the principal does not make the principal liable to a third party for breach of contract. Therbone v. Cougot Joubert, 3 La. App. 771. Where the contract was negotiated and consummated between the parties by telegraph, the several dispatches must be construed by the court. Humes v. O'Bryan, 74 Ala. 64; Lutz v. Van Heynigen Brokerage Co., 199 Ala. 620, 75 So. 284; Dunaway v. Roden, 14 Ala. App. 501, 71 So. 70; Baskett Lumber Mfg. Co. v. Gravlee, 15 Ala. App. 359, 73 So. 291. Where the evidence is free from conflict, it is the duty of the court to charge the jury affirmatively on the request of either party. Manier v. Appling, supra.
This is an appeal brought by the plaintiff in the court below from a judgment adverse to him in a suit against appellee (defendant) claiming damages on account of an alleged breach of contract whereby, according to plaintiff's (appellant's) complaint, he agreed to buy from the defendant, and it agreed to sell to him, etc., a certain car of lemons.
The trial court gave the duly requested general affirmative charge for the defendant (appellee), and verdict and judgment followed, accordingly.
It seems that appellee was the owner of the car of lemons in question, and that said lemons were in the railroad yards at Mobile. The same were in charge of one Charles G. Ibach, a merchandise broker in the city of Mobile. Appellant knew this, and entered into negotiations with said Ibach, looking to the purchase by him, through Ibach, of the said car of lemons.
It appears that appellant understood, thoroughly, Ibach's authority in the premises; that the purchase must be made through him; that, before a sale could be consummated, appellee would have to accept, or give Ibach authority to accept, any offer that was submitted through him.
Briefly, appellant submitted to, or through, Ibach, an offer, for the said lemons; not getting a response as quickly as he wished, he wired appellee, a nonresident, direct, as follows: "Wire quick accepting or rejection our offer of five fifty flat on car lemons here on track. Let us have a reply direct to us today."
Promptly, appellee wired appellant: "Already wired Ibach authority accept your offer lemons Thanks."
On the above occurrences, appellant claims there was a contract to sell to him the said car of lemons.
Ibach, who as stated, and, certainly so far as appellant was concerned, had full authority — in accordance with his instructions — to sell and deliver said lemons, had, before the receipt by appellant of the wire, mentioned, from appellee, sold said lemons to another party. Hence this suit.
The trial court held, on the facts, that appellant had no case. And we agree with him.
"To constitute a contract there must be a definite, unconditional, acceptance of the offer made." Manier Co. v. Appling, 112 Ala. 663, 20 So. 978. And where the evidence is free from conflict, it is the duty of the court, on the request in writing of either party, to charge the jury directly and affirmatively on the effect of the evidence. Ib.
And, "when the contract [alleged] sued on was negotiated and consummated between the parties by telegraph, the several dispatches, as written instruments, must be construed by the court." Humes v. O'Bryan, 74 Ala. 64, 66; Manier Co. v. Appling, supra.
It is clear that appellee did not accept appellant's offer — merely authorized its agent, Ibach, to do so. And that Ibach never did do so.
Appellant simply never obtained any contract.
There is no prejudicial error, anywhere, and the judgment is affirmed.
Affirmed.