#### E. C. GREEN et al. v. A. F. MESSICK GROCERY COMPANY.

(Filed 17 November, 1910.)

1. Contracts — Offer—Acceptance.

Until an acceptance is made according to the terms and conditions of an offer to lease lands, the negotiation is open and no obligations are imposed.

2. Same — Interpretation of Contract.

The written correspondence between the parties relating to the leasing of certain hotel property being interpreted and held not to constitute a completed contract in an action to recover $400 deposited as for money had and received, held, (1) the defendant having failed to confirm by wire the plaintiff’s offer contained in the letter enclosing the $400 security money, the plaintiff had the right to withdraw the offer and recover bach the money with interest; (2) the defendants could not recover on their counterclaim for damages; (3) there being no contract, plaintiff could not recover damages for the breach of one.

*410Appeal from Long, J., at tbe February Term, 1910, of Foe-syth.

Civil action to recover for money bad and received and damages for fraudulent representations.

These issues were submitted to tbe jury:

1. Did tbe defendant mate tbe fraudulent representation, as alleged in tbe complaint, and witb tbe intent to procure money from tbe plaintiffs without adequate returns, and thereby obtain four hundred dollars ($400) from tbe plaintiffs and cause them' to incur tbe expenses, as alleged, in tbe complaint? Answer: No.

2. "What amount, if anything, are tbe plaintiffs entitled to recover of tbe defendant? Answer: Nothing.

3. Are tbe plaintiffs indebted to tbe defendant for any balance due on tbe rents of tbe hotel, as alleged in tbe answer, and if so, in what sum? Answer: Two hundred and seventy-five ($275). Tbe plaintiffs moved for new trial. Motion overruled — plaintiffs excepted. From tbe judgment rendered tbe plaiiitiffs appealed.

Louis M. Swinlc for plaintiffs.

Watson, Buxton & Watson for defendant.

BeowN, J.

Tbe plaintiffs seek to recover of tbe defendants tbe sum of $400, as money bad and received and remitted to defendant on account of certain negotiations between plaintiffs and defendant in regard to renting a hotel.

It appears that defendant owned tbe Hotel Forsyth in 'Winston-Salem and advertised it for rent. Tbe advertisement was answered by plaintiffs who resided in St. Louis, and what contract, if any was entered into, is embodied in tbe written correspondence between tbe parties.

It is claimed by plaintiffs that there was no completed contract between them and defendant, and secondly, that if there was tbe plaintiffs were induced to enter into it by tbe false representations of tbe defendant. Tbe court instructed tbe jury in bis charge that tbe correspondence constituted a contract of *411rental for tbe period of twelve months, at the rate of $200 per month. This is assigned as error.

If the plaintiffs are right in their contention that there is no completed contract made out by the correspondence, then all other questions are eliminated and the plaintiffs would be entitled to recover the four hundred dollars only remitted to defendant as money had and received to their use.

The correspondence set out in the record embraces first, letter 2 January, 1909, defendant to plaintiff, describing the hotel and offering it at $200 per month for twelve months. Second, letter from plaintiffs to defendant dated St. Louis 23 January, 1909, asking for further data. Third, letter from defendant to plaintiffs 26 January, giving further data and suggesting that plaintiff send on $400 to confirm trade with further statement that “in case we shall have closed before receiving your wire then you could have it wired back; otherwise we will confirm by wire.” Fourth, telegram:

St. Louis, Mo., 29 Jan., 1909.

A. F. Messiox,

Winston-Salem, N. C.

Letter received after banking hours; will wire money order tomorrow. E. O. GreeNE.

Fifth, telegram:

WiNstoN-Salem, N. C., 30 Jan., 1909.

E. C. GbeeNe,

Care Wellington Hotel,

St. Louis, Mo.

Holding Hotel Forsyth for your order, as per wire of yesterday. A. F. MeSSICK GROCERY Go.

Sixth, telegram:

St. Louis, Mo., 30 Jan., 1909.

A. F. MessicK,

Winston-Salem, N. O.

Mailed draft today; could not telegraph order; blizzard; letter explains. E. C. Greehe.

*412Seventh, letter written in pursuance of last telegram:

St. Louis, Mo., 30 Jan.,, 1909.

A. E. Messick,

Winston-Salem, N. C.

DeáR Sues : When it came to wiring you $400 this morning, every telegraph wire leading out of St. Louis was down. We are in the midst of the worst blizzard this country ever witnessed. Wires down, railroads blocked with snow, wind blowing a gale 70 miles an hour. So, had to use my best judgment in the matter, thought this the wisest course to pursue. The $400 enclosed is the advance payment for the first two months, rent to Hotel Forsyth fully furnished in every department. From the date taking possession. On receipt of draft wire me care Wellington Hotel, St. Louis, confirming deal. Will start for Winston-Salem at once. Trusting, under the circumstances, this is satisfactory to you.

Tours truly,

E. C. G-ReeNe,

Care The Wellington.

The plaintiffs received no telegram confirming the deal, and it is not contended that any was ever sent. They waited in St. Louis until 2 February, and receiving no confirmation by wire they left for Winston-Salem, arriving there on 4 February, and went to Hotel Forsyth at midnight. The following day plaintiffs demanded the $400.

Nothing was said or done in Winston-Salem by plaintiffs to ratify the deal or to waive their rights from failure of defendant to confirm by wire as directed in the letter of 30 January, as well as agreed to in defendant’s letter No. 3 of 26 January.

The plaintiffs had a right to demand such confirmation and in the manner required by their letter containing the remittance.

Until such confirmation was sent by wire there was no completed contract and plaintiffs had a right to demand their money back when they arrived at Winston-Salem.

As is said by the Supreme Court of the United States in Eliason v. Henshaw, 17 U. S., 228: “It is an .undeniable prin-*413eiple of the law of contracts, that an offer of a bargain by one person to another, imposes no obligation upon the former, until it is accepted by the latter, according to the terms in wbicb the offer was made. Any qualification, of, or departure from those terms invalidates the offer, unless the same be agreed to by the person who made it. Until the terms of the agreement have received the assent of both parties, the negotiation is open, and imposes no obligation upon either.” Clark on Contracts, p. 36-39; Cozart v. Herndon, 114 N. C., 252; 1 Wharton on Cont., 4; Gregory v. Bullock, 120 N. C., p. 263; 7 Am. & Eng., p. 138. We are of opinion his Honor erred in charging the jury as set out hereinbefore and that the exception is well taken.

He should have submitted the issues tendered by the plaintiffs and have instructed the jury that there being no evidence that the defendant had accepted and confirmed by wire the proposal to lease, as required by the letter of 30 January transmitting the $400, the plaintiffs had a right to withdraw and to recover that sum and interest thereon as money had and received to their use, and that defendants were not entitled to recover on the counterclaim.

There being no contract of course plaintiffs can recover no damages for its breach.

New trial.