#### S. R. MORRISON et al. v. J. H. PARKS.

(Filed 3 December, 1913.)

Contracts — Offer—Acceptance.

For tbe acceptance of an offer to become a binding contract, it must be absolute and unconditional, and identical witb its terms in all respects; and where an offer to sell lumber is made, and tbe acceptance is for a lower price, witb further specification as to kinds, etc., tbe acceptance is a conditional one, and does not make a contract of sale.

Appeal by plaintiffs from Daniels, J., at May Term, 1913, of Catawba.

A. A. Whitener for plaintiffs.

W. A. Self and Spainhour & Mull for defendant.

Clark, C. J.

This is an action to recover $320 on account of defendant’s failure to execute an alleged contract for tbe sale of certain'lumber. At. tbe close of plaintiffs’ evidence tbe court sustained tbe motion for a nonsuit.

Tbe defendant addressed a letter to tbe plaintiff as follows:

> “GeNtlemeN : — I have about 80,000 feét of oak left yet, for wbicb I will take $16 per M, delivered on cars at Bridgewater dog-run.’ I will take $8 per M for the. mill culls I bave at Bridgewater, as.that is wbat it cost me; cut and deliver same.”

To this tbe plaintiff replied:

> “Dear Sir : — Tour letter of tbe 20th received, and would say, we will take your % oak, at $16, mill culls out, delivered on *198ears at Bridgewater. We will handle all your mill culls, but not at the price you are asking. We are buying from A. L. & Co. for $4.50 on_board the cars. ¥e would be glad to handle yours at this price. How soon will you have some % ready to load? We will take the 80,000 feet and will depend on this, and will load it out as soon as you can put it on the railroad. Please 'write us at once how soon you will have some of this stock ready to load.”

The alleged contract being in writing, the construction of this written evidence was a matter for the court. In order to make the offer and reply a contract, “The acceptance must be (a) absolute and unconditional, (b) identical with the terms of the offer, (c) in the mode, at the place, and within the time expressly or impliedly required by the offer.” Clark on Contracts (2 Ed.), 25; Sumrell v. Salt Co., 148 N. C., 552.

The plaintiff Morrison testified that means lumber “an inch thick, of any length or width,” and that “log-run” means “any thickness, with culls out.” He further testified that the market price of % lumber, of that character, at that place and time, was $18.50.

It is apparent that the reply was not an acceptance of the terms of the offer of the defendant. (1) The defendant offered to take $8 per M for mill culls. The plaintiff replied, offering $4.50. (2) The defendant offered 80,000 feet of oak “log-run” at $16. .The plaintiff replied, offering $16 'per M for % oak— an entirely different article, and which he himself testified was then worth in the market $18.50 at the same place.

There was no contract. The offer of the defendant was not accepted, but a counter offer of an entirely different nature was made. The minds of the parties never met. The judgment of nonsuit must be

Affirmed.