CHINA & JAPAN TRADING CO. v. DAVIS et al., 119 F. 688

PER CURIAM. While in the letters of July nth the trading company gave notice that engagements of freight room covering through shipment.and transshipment to destination should be simultaneous with sale to the trading company, yet in the offer by the telegram of Davis & Co. of August 18th no engaged freight room was either promised or suggested. It may be that, as the offer was optional as to destination, China or Japan, and as to October-November or November-December shipment, it was impracticable to promise or guaranty freight room in advance of the trading company’s absolute acceptance.

The trading company’s telegram of August 18th and its letter of the same date make the acceptance of Davis & Co.’s offer conditional upon Davis & Co. having secured fixed freight engagement and steamer space to Japan, and in the letter reasons are given why the acceptance was thus made conditional upon the secured freight space. The case shows that the trading company did not waive, but always insisted upon, this condition, and in its letter of August 28th it deals with the matter in this language: “We are not pleased with your carelessness in the matter of freight on this lot of cotton.

You had our letter of general instructions before you, in which it was specifically stated that the freight engagement must he made at the time of selling us the cotton.

With this warning and the experiences of last year fresh in mind, we are at a loss to see why you should have run this risk.” This letter, in connection with the letter claimed by plaintiff to be an acceptance, is absolutely inconsistent with the proposition now necessary to maintain plaintiff’s case, to wit, that Davis & Co.’s offer of August 18th was unconditionally accepted: If that offer was unconditionally accepted, why the specific reservation in the letter of August 18th, and why, as late as August 28th, write about the carelessness and risk of Davis & Co. because they had not previously engaged freight space to Japan?

We see no reason to doubt that Davis & Co. by letter of September 2d, canceled the offer. Even if the trading company never received the letter canceling the offer, its silence as to delivery, under the alleged contract of August 18th, from August 28th to November 13th following, while cotton was steadily advancing, is very significant. The trial judge concluded that the contract was never accepted so as to be binding upon both parties, and properly instructed a verdict for the defendant, and the judgment upon that verdict is affirmed.