#### P. C. RUCKER v. W. M. SANDERS.

(Filed 14 December, 1921.)

1. Contracts — Offer of Sale — Acceptance—Correspondence—Mail—Reasonable Time.

Where one desiring to purchase shares of stock of the other writes for an offer at the lowest price, a reply, by letter, making the offer implies that an acceptance by letter will be in time.

2. Same — Acceptance of Terms of Offer — Method of Delivery and Payment.

An unconditional acceptance of.an offer for the sale of stock at a certain price and in accordance with its terms, by correspondence of the parties living at different towns, without stating the method of delivery and payment, does not relieve the- owner of his liability for failing to deliver the stock, by a suggestion in the acceptance that the delivery and payment be made by draft on him with the shares attached.

S. Same — Mutuality of Contoact — Remedy.

Where an offer to sell shares of stock is unconditionally accepted, leaving open the method by which the shares should be delivered to and paid for by the acceptor, the contract thus made is an executory one with mutuality of obligation and remedy.

4. Same — Duty of Acceptor.

A prompt acceptance by mail of an offer by mail to sell certain shares of stock at a certain price, without provision for the method of delivery and payment requires of the purchaser only that he act within a reasonable time in finally closing the transaction.

5. Same — Intention—Agreement of Minds of Contracting Parties.

The intention of the parties will control in determining whether an acceptance of an offer to sell shares of stock was identical with the terms of the offer, or created a condition not contemplated by the offerer, or upon which the minds of the contracting parties had not agreed; or was merely a suggestion as to how the stock should be delivered by the offerer and paid for by the acceptor.

'Clark, C. J., dissenting.

Appeal by plaintiff from Webb., J., at September Term, 1921, of CrUILEORD.

*608Civil action to recover damages for an alleged breach of contract,, growing out of the following negotiations:

On Wednesday, 24 March, 1920, the plaintiff, who resides in Greensboro, N. C., addressed a letter of inquiry to the defendant, who lives at Smithfield, N. C., asking what was the lowest price he would take for his stock in the Jefferson Standard Life Insurance Company. On Friday, the 26th, the defendant answered by mail, saying that he owned 50 shares of said stock, which he would sell for $10,000.- On Saturday, 27 March, the plaintiff wrote the defendant as follows:

“Regarding your fifty shares of Jefferson Standard stock that you offer at $10,000, while this is the highest price I have heard of, I will accept it. Just draw on me here at Greensboro with your Jefferson Standard stock attached to the draft, and I will honor same. Please advise me that you have drawn so I will be looking out for the draft.”

The following Monday, 29 March, the defendant replied, saying that he had disposed of his stock; whereupon, on^O March, the plaintiff wired the defendant insisting that the stock be delivered in accordance with his offer.

There was a judgment of nonsuit upon the ground that no enforceable contract had been shown, and, from this ruling, the plaintiff appealed.

Alfred S. Wylie and J. S. Dimcan for plaintiff.

King, Sapp & King for defendant.

Stacy, J.

We think the defendant’s motion for judgment as of non-suit should have been denied. The offer to sell the fifty shares of stock in question for $10,000 was made by mail, which carried with it an implied invitation, nothing else appearing, to accept or reject the offer in like manner, that is, by mail. Patrick v. Bowman, 149 U. S., 411; 13 C. J., 300; 6 R. C. L., 611. Where no time limit is fixed, it is gen-^ erally understood that the offeree must accept within a reasonable time; and we think this necessarily means that he should have a reasonable time within which to accept, in the absence of any revocation by the;/ offerer. Minn. & St. L. R. Co. v. Columbus Rolling Mill Co., 119 U. S., 149; Lucas v. Western Union Tel. Co., 6 L. R. A. (N. S.), 1016, and note; Litz v. Goosling 21 L. R. A., 127, and note. However, this is not one of the mooted questions before us, as the plaintiff’s .letter of acceptance was forwarded by return mail, and defendant admits that he received it before selling his stock to another.

There is no controversy or difference of opinion between the parties as to the general rules of law governing the subject of contracts by correspondence; but the defendant contends that the plaintiff’s letter of 27 March was not an unconditional and unqualified acceptance of his *609offer. He says the terms were varied by the direction to draw draft with stock attached; and that such was a condition precedent to plaintiff’s acceptance. We think this construction is rather too technical, and might properly be characterized as “sticking in the bark.” It is quite certain that if the plaintiff were seeking to avoid his agreement on this ground we would be disposed to hold against him. And if the contract be binding as to one of the parties, it is binding as to both. The defendant’s offer was accepted absolutely, without condition, and this resulted in an executory contract, with mutuality of obligation and remedy. Howell v. Pate, 181 N. C., 117, and cases there cited.

The difficulty in the instant case arises out of the failure of the parties to distinguish between a condition which goes to the making of the contract and a suggestion relating only to its ultimate performance or execution. Of course, to consummate any kind of a contract there must be a meeting of the minds upon a given subject. An unaccepted offer is not a contract; and, as stated in a number of eases, an acceptance to be effectual must be identical with the offer and unconditional. 13 C. J., 281. But in order for this subsequently intended direction or suggestion to invalidate the acceptance, it should amount to a qualification or condition imposed as a part of the acceptance itself. In other words, it must be construed in the case at bar as a qualified acceptance to the effect that “I will accept your offer; provided you attach stock to draft and draw on me here in Greensboro and advise me so that I can be looking out for same.” It will be readily conceded, without debate, that if this latter meaning be the reasonable and natixral interpretation of plaintiff’s letter dated 27 March, then there was no contract, and the defendant’s contention, based upon this assumption, is entirely correct. But, on the other hand, if a contrary purpose were intended, as apparently and evidently it was, and the parties so understood it, we must give effect to the most essential and controlling element of all executory contracts, to wit, the real understanding and intention of the parties. The suggestion or direction made by plaintiff to draw draft with stock attached was not an unusual or unexpected method by which the parties might reasonably have contemplated carrying out the contract; and this lends color to the conclusion that a compliance with the plaintiff’s wish, hope, or expressed request, “just draw on me here with stock attached,” was not intended as a condition precedent to his acceptance of the defendant’s offer. It is further conceded that the result would have been otherwise had this suggestion not been accompanied by a declaration of unqualified and unconditional acceptance. 39 Cyc., 1199, and cases cited in note.

There is no effort to circumvent or deny the well settled principle that an offer must be accepted in its exact terms in order that a contract *610should arise therefrom, and any attempt to impose new conditions or terms in the acceptance, however slight, will ordinarily deprive it of any efficacy. Krentzer v. Lynch, 122 Wis., 474. But where the.letter of acceptance contains a mere suggestion, or request, that payment be made in a certain way, and such request is not in form of a condition attached to the acceptance, it does not amount to an attempt to vary the terms of the offer to sell, and will not defeat an action in proper instances for specific performance, or one for a breach of the contract. Curtis Land Co. v. Interior Land Co., 137 Wis., 341; Turner v. McCormick, 56 W. Va., 151.

In the last cited case, the Supreme Court of West Virginia makes, the following general observations pertinent to the subject now in hand: “If a man says, ‘I accept your offer/ that makes a contract. It assents to all the terms of the offer. What more is necessary? There is a complete aggregatio mentium. The acceptance conforms to the offer in every particular. How can a mere request relating not to the making of the contract but to its performance be deemed to change it? Would the'acceptor be permitted to excuse himself from performance on the ground of such request? No precedent of that kind' has been found. They are all cases in which the proposer, desiring to escape from the consequences of his offer, because somebody else has proposed a higher price than the first asked, seeks to repudiate the transaction and sell to the other party. Property rights are sacred, and should be well guarded by the law; but, when a man has deliberately made a fair contract of sale, he ought not to be permitted to avoid it on some flimsy pretext in order to avail himself of a better bargain. Time and place of payment, when not mentioned in an accepted offer, are fixed by law, and are matters of performance, carrying out the contract, a thing wholly distinct and separate from the making of the agreement. If, contemporaneously with or subsequent to the - making of the contract, either party suggest, request, or propose a time, place, or mode of performance different from that agreed upon, that does not of itself effect such change, nor does it cause a breach, giving right of action or rescission to the other party. Swinger v. Hayman, 48 S. E., 839.”

In Skinner v. Stone, 222 S. W., 360, a case practically on all-fours with the one at bar, the Supreme Court of Arkansas holds (as condensed and stated in the syllabus) : “A suggestion in the acceptance of an offer to sell real estate that the purchaser will take care of draft attached to deed sent to a specified bank does not make that method of payment a condition which will avoid the contract if not accepted, but the purchaser must be given the opportunity to pay in money if the seller require it.”

*611In tbe note following tbis ease, published in 11 A. L. R., 811, tbe reporter cites two of our own decisions in support of tbe same position, to wit, Hughes v. Knott, 138 N. C., 105, and Blalock v. Clark, 137 N. C., 140.

Tbe defendant relies on tbe case of Hall v. Jones, 164 N. C., 199, but we think there is a marked distinction between tbe facts of that case and those here presented. There tbe plaintiff Hall annexed to bis acceptance tbe condition that tbe trade be consummated in fifteen or twenty days thereafter, and asked for a ratification of tbis change by tbe "defendant Jones. Tbis was not an acceptance in tbe terms of tbe offer; and, therefore, amounted to a rejection of it. Minn. & St. L. R. Co. v. Columbus Roller Mill Co., supra; National Bank v. Hall, 101 U. S., 43.

Our attention has been called to a number of cases in other jurisdictions, seemingly in support of a different position, but we think tbe conclusions we have reached, and stated above, is more in keeping with tbe real purpose and intention of tbe parties; and it is universally conceded that tbis should be tbe guiding star of construction in every case. See 39 Cyc., 1197, and cases collected in note.

Defendant further contends that tbe plaintiff should not be permitted to maintain tbis suit because, at tbe time in question, be was a stockholder and director in tbe Jefferson Standard Life Insurance Company, and, therefore, under tbe duty of disclosing to tbe. defendant whatever information be may have bad regarding tbe value of tbis stock.

There is a sharp conflict in tbe authorities elsewhere over tbe question as to whether tbe relations between a director or officer of a corporation, on tbe one band, and shareholders, on' tbe other, are not of such a fiduciary relation as to make it tbe duty of tbe former to disclose tbe knowledge which he possesses affecting tbe value of the- stock before purchasing same from a shareholder. An interesting and valuable discussion of tbis subject will be found in 14 A. C. J., 128; Shaw v. Cole Mfg. Co., 132 Tenn., 210; L. R. A., 1916 B, 706, and note; Dawson v. Nat. Life Ins. Co., 157 N. W., 929; L. R. A., 1916 E, 878; Strong v. Repide, 213 U. S., 419; 53 L. Ed., 853. And in our own reports, see Besseliew v. Brown, 177 N. C., 65, and cases there cited, especially McIver v. Hardware Co., 144 N. C., 478. But we do not think tbe facts in tbe instant case call for a decision of tbis question at tbe present time. There is no evidence on tbe record tending to show that tbe defendant bad any less knowledge of tbe company’s business, or tbe value of tbe stock, than tbe plaintiff. Hence, it does not now appear tbat any barm has resulted from tbis alleged circumstance, even if it be open to tbe defendant.

Tbe judgment of nonsuit will be set aside, and tbe cause remanded for a new trial.

Eeversed.

*612Clark, 0. J".,

dissenting: On Wednesday, 24 March, 1920, tbe plaintiff, who resided at Greensboro, N. C., inquired by letter of tbe defendant, wbo resided at Smitbfield, N. 0., if be bad any Jefferson Standard Life Insurance Company stock for sale, and if so, to name bis lowest price. On Friday, 26tb, defendant replied by letter tbat be bad 50 shares of said stock, for which be would take $10,000. On Saturday, 27 March, tbe plaintiff wrote tbe defendant tbat be accepted bis offer, adding, "Just draw on me here at Greensboro with your Jefferson Standard stock attached to tbe draft, and I will honor tbe same. Please advise me tbat you have drawn, so I will be looking out for tbe draft.”

On Monday, 29 March, tbe defendant replied tbat be bad disposed of tbe stock, whereupon, on 30 March, tbe plaintiff wired tbe defendant insisting on the delivery of tbe stock. This constitutes tbe entire correspondence between tbe parties with respect to tbe sale of tbe stock except tbe subsequent letter from tbe defendant of 21 April, 1920, which tbe defendant wrote explaining why be did not accept tbe plaintiff’s offer to draw on him, and bad sold tbe stock in Smitbfield for cash.

> 21 April, 1920.

> Me. P. O. Rucker, Greensboro, N. O.

> Dear Sir : — Of course you understand tbat I offered you tbe stock at $10,000 cash in Smitbfield. You have never offered me any cash for my stock, but proposed tbat I draw on you through some Greensboro bank. You also stated tbat I might notify you a few days ahead of draft, so tbat you could arrange with tbe bank to pay draft in case of your absence. In your first letter you referred to my stock as insignificant in quantity. In your second letter you stated tbat my price was above tbe market and rather more than you bad ever known any to bring. You might have wired or called me over tbe telephone. Your attitude and expressions led me to believe tbat you were indifferent. I bad tbe opportunity on Saturday, and again on Monday following our correspondence, to sell tbe stock for cash, which I did.

> I am very sorry tbat you are disappointed, but I think tbat you slept upon your opportunity. You should have called me over phone or wired. Yours truly,

> W. M. SaNders.

Tbe court held tbat tbe letter of tbe plaintiff of 27 March was not an unconditional acceptance of tbe defendant’s offer in bis letter of 26 March, and directed a nonsuit.

Tbe alleged contract being entirely in writing, it was a matter of law for the court to determine whether tbe correspondence constituted a contract or not. Spragins v. White, 108 N. C., 449; Festerman v. Parker, 32 N. C., 474; Young v. Jeffreys, 20 N. C., 357.

*613“It is familiar learning tbat to make a valid sale tbe acceptance must be in tbe terms of tbe offer. 7 A. & E., 125. No special formalities are required, but tbe offer and acceptance must agree. Tbe buyer bas no right to attach any conditions if be proposes to bold tbe seller upon tbe original offer.” Hall v. Jones, 164 N. C., 199.

Tbe offer of tbe defendant, in letter of 26 March, acknowledging tbe receipt of tbe plaintiff’s offer to purchase bis Jefferson Standard Life Insurance Company stock, says: “I will take $10,000 for it.” Tbe plaintiff’s answer, on 27 March, to this offer says: “Eegarding your by the earliest opportunity have paid bis creditor tbe $10,000 in cash at while this is tbe highest price I have beard of, I accept it.” If tbe reply bad stopped with these words tbe two minds would have met and tbe plaintiff would have become tbe debtor of tbe defendant, and should by tbe earliest opportunity have paid bis creditor for tbe $10,000 at bis home in Smithfield. But tbe plaintiff added a material condition to bis acceptance by saying: “Just draw on me here at Greensboro with your Jefferson Standard Company stock attached to tbe draft, and I will honor tbe same. Please advise me tbat you have drawn, so I will be looking out for tbe draft.”

This was not an unconditional acceptance, but a material variance. It is true tbe seller might have complied with this variance, but it is also true tbat bis terms not having been accepted, which clearly contemplated tbe payment in cash to him, in tbe prompt and regular course of dealings, at Smithfield, be could disregard it and accept payment of cash at bis home from another party which was made him after tbe receipt of said conditional acceptance of tbe plaintiff.

This matter of offer and acceptance in dealings of this kind are of hourly occurrence throughout tbe country, and it is of tbe greatest importance that tbe settled law tbat tbe acceptance of an offer must be unconditional shall'be kept unchanged. In 13 C. J., 281, tbe law is thus fully and admirably stated with copious citations in tbe notes, “An acceptance to be effectual must be identical with the o'ffer and unconditional. Where a person offers to do a definite thing and another accepts conditionally or introduces a new term into tbe acceptance, bis answer is either a mere expression of willingness to treat or it is a counter proposal, and in neither case is there an agreement. This is true, for example, where an acceptance varies from tbe offer as to time of performance, place of performance, price, quantity, quality, and other like cases. A promise to give an offer consideration cannot be regarded as an acceptance, nor can a statement tbat tbe offeree is prepared to malee arrangements on the terms named/' If an offer is accepted as made, tbe acceptance is not conditional.

*614It is clear from this correspondence that the offer of the defendant meant that he would take $10,000 cash, payable forthwith in Smithfield. The reply of the plaintiff varied this by proposing to make payment to the seller in Greensboro, which was not according to the terms of his offer, but a material variance.

If the seller had complied with the proposed condition, he would have made the bank in Greensboro his agent to collect. There would, of course, have been the risk of the cheek sent by said bank to the seller being protested, or lost in the mails, or if remitted in cash there would have been danger of theft by the employees of the express company or loss by collision or by train robbers. It is true that these risks might be slight, but they were risks which under the terms of the defendant’s offer should have been borne by the plaintiff, whose duty it was to safely convey the $10,000 and pay it over to the seller at his home in Smithfield within the prompt and ordinary course of transmission and payment.

Among the many notes to the above citation from 13 C. J., 281, are the following: “Note 32: When the offer is to buy a horse and the offeree accepts (if he will come for it) there is no agreement.” Fenno v. Weston, 31 Vermont, 345; Baker v. Holt, 56 Wisconsin, 100. Also, “Where the offer of property for sale says nothing about the place of payment and the acceptor specifies that it shall be made at his residence, there is no agreement, for the offer entitles the seller to payment at his place of residence.” See 39 Cyc., 1197, with other citations.

That is exactly the case here. The place of payment not being named, it was, of course, to be made at the residence of the seller in Smithfield, and the condition annexed by the buyer that he would make payment in Greensboro, and that notice should be given him so that he might be prepared to make payment was a material difference as to which the two minds did not meet, and his Honor properly nonsuited the plaintiff upon that ground. There are occasions when the parties are farther apart than Greensboro and Smithfield. For instance, where the offerer might be in New York and the offeree in San Francisco or New Orleans or London. In such cases the variation by reason of the greater distance and delay would emphasize the variation from the proposal of the defendant and the acceptance of the buyer, but the principle of law involved is the same. It is so important and so universally settled that it should not be made uncertain.

In 6 R. C. L., 608, the same uniform ruling of the Court is thus summed up: “There must be no variance between the acceptance and the offer. Accordingly, a proposal to accept, or an acceptance, upon terms varying from those offered, is a rejection of the offer, and puts an end to the negotiation unless the party who made the original offer renews it or assents to the modification suggested. The other party *615having once rejected the offer, cannot afterwards revive it by attempting an acceptance of it. The acceptance must be unequivocal and unconditional. If to the acceptance of a proposal any condition be affixed by the party to whom the offer is made, or any modification or change in the offer be made or requested, there is a rejection of the offer. Having in effect rejected the offer by its conditional acceptance, the offeree cannot subsequently bind the offerer by an unconditional acceptance. The offerer may, of course, assent to the terms imposed by the offeree, and such assent may be inferred from the fact that the parties conducted business under the conditional acceptance,” citing many cases. In this instance the defendant, upon a fair construction of the correspondence, offered to take $10,000 cash for his stock, payable to him in Smithfield. The offeree, the plaintiff, varied this by offering to pay in Greensboro to the agent of the offerer. If the seller had assented to this variation the contract would have been closed, but the seller was not required to take notice of an acceptance which was conditional. Being offered by another payment in cash to himself in Smithfield, he chose to accept, and this he had a right to do.

In 39 Cyc., 1191, the same principle is laid down as in the above quotations from O. J. and R. O. L., with numerous citations of authorities. In note 98 thereto it is said: “If no place is specified for payment, it is implied that it is to be made at the residence of the vendor or his agent, and an acceptance fixing a different place is bad as a variance from the offer,” citing a very long list of cases as a statement of the uniform ruling of the courts. The acceptance of the offeree in this case in effect proposing to pay in Greensboro, at the risk of the seller for the transmission of the payment to the vendor, was not the unconditional acceptance which the law requires in such transactions.

Benjamin on Sales (7 ed.), sec. 39, says: “The assent must, in order to constitute a valid contract, be mutual, and intended to bind both sides. It must also coexist at the same moment of time. A mere proposal by one man obviously constitutes no bargain of itself. It must be accepted by another, and this acceptance must be unconditional. If a condition be affixed by the party to whom the offer is made, or any modification or change in the offer be requested, this constitutes in law a rejection of the offer and a new proposal, equally ineffectual to complete the contract until assented to by the first proposer.”

While in this case the offer of the defendant does not use the word “cash,” it is apparent from the correspondence and the course of dealing that this was the intent of the parties. In 1 Page on Contracts, 77, sec. 46, the author says: “If the offer of sale does not state the terms of payment, cash payment is implied. Hence, an acceptance which attempts to secure even a short period of credit, does not make a con*616•tract.” Under tbe ruling in Hall v. Jones, supra, tbe defendant was not required, under tbe terms of bis offer, to incur tbe expense and risks and delay in sending bis stock to some bank at Greensboro to be paid at tbe pleasure and convenience of tbe plaintiff. It was incumbent upon tbe plaintiff to accept or reject tbe offer unconditionally, and if be accepted be should bave sent tbe casb, or wbat would be accepted as casb, by tbe earliest conveyance to tbe seller at bis borne in Smitbfield. Tbis proposition is beld tbe settled law as stated in tbe above and other citations. Among other cases in1 point fully supporting these contentions of tbe defendant in tbis case are Sawyer v. Brossart, 67 Iowa, 678; 56 American Reports, 372; Iron Co. v. Meade, 21 Wisconsin, 474; 94 American Decisions, 557; Baker v. Holt, 56 Wisconsin, 100; 1 Parsons on Contracts (6 ed.), 475; 1 Page on Contracts, 75, citing many cases, among them, Gilbert v. Baxter, 71 Iowa, 327. It is believed there are none to tbe contrary.

In Iron Co. v. Meade, 21 Wisconsin, 474; S. c., 94 Am. Dec., 557, it is said: “Acceptance of an offer to sell land, but fixing a different place for tbe delivery of tbe deed is invalid. If tbe plaintiff bad simply said: T accept your proposition/ then there would bave been an agreement to sell tbe land for casb. Tbe payment of tbe money and tbe delivery of tbe deed in such cases are concurrent acts.”

Tbe defendant’s offer was to accept $10,000 cash in Smitbfield. Tbe plaintiff accepted it upon condition that be was to pay to defendant’s agent in Greensboro, thus throwing upon tbe defendant tbe expense and risk of transmitting tbe stock, $10,000 worth to Greensboro and tbe expense and risk of tbe transmission back to him of tbe $10,000 in casb or by check to be turned into casb upon presentation by him to tbe bank in Smitbfield and payment thereof. Tbis was not tbe offer that was made by tbe defendant, but a very material variation. It is, on its face, neither an inquiry nor a mere suggestion of tbe mode of payment, but tbe statement of tbe conditions upon which tbe plaintiff would accept tbe defendant’s offer.

We are not inadvertent that tbe defense was also set up that tbe plaintiff was an officer of tbe company and informed as to tbe value of its stock, whereas, tbe defendant was not, but tbis question does not arise upon tbe nonsuit, and we think tbe principle of commercial law involved is of sufficient importance to justify tbe above citation of authorities, which should be conclusive of tbe correctness of tbe nonsuit.