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Law School Case Brief

Cole-McIntyre-Norfleet Co. v. Holloway - 141 Tenn. 679, 214 S.W. 817 (1919)

Rule:

It is a general principle of the law of contracts that, while an assent to an offer is requisite to the formation of an agreement, yet such assent is a condition of the mind, and may be either express or evidenced by circumstances from which the assent may be inferred. Acceptance of an offer may be inferred from silence. This is only where the circumstances surrounding the parties afford a basis from which an inference may be drawn from silence. There must be the right and the duty to speak, before the failure to do so can prevent a person from afterwards setting up the truth. It is the duty of a wholesale merchant, who sends out his drummers to solicit orders for perishable articles, and articles consumable in the use, to notify his customers within a reasonable time that the orders are not accepted; and if he fails to do so, and the proof shows that he had ample opportunity, silence for an unreasonable length of time will amount to an acceptance, if the offerer is relying upon him for the goods. 

Facts:

The seller's agent solicited an order for several barrels of cornmeal from the buyer. Several months later, when the buyer sought the shipment of the meal, he was informed that the seller had rejected his order. The buyer filed a breach of contract suit against the seller, and a judgment was entered for the buyer. The Court held that where an order for meal was solicited by seller's agent, a delay for 60 days after the order was taken in notifying the customer that it had not confirmed or accepted the orde,r as required, was unreasonable and effected an acceptance of the order. The seller filed a writ of error seeking to have the judgment set aside, but the circuit court denied the writ. The seller sought review.

Issue:

Should the seller's silence be deemed an acceptance of the order?

Answer:

Yes

Conclusion:

The court affirmed the judgment for the buyer, denied the writ of error, and held that the lower court had properly concluded that the seller's unreasonable delay in communicating its rejection of the order constituted its acceptance of the order. The court further held that there was no evidence that the seller's agent had exceeded his authority in taking the order, so the seller's unreasonable silence constituted its acceptance of the order binding it to the contract. Finally, the court denied the seller's petition for a rehearing. The lower court properly entered judgment in favor of the buyer.

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