
    The Northwest Thrasher Company v. H. C. Lesueur.
    No. 14,859
    (88 Pac. 541.)
    SYLLABUS BY THE COURT.
    
      Sales — Order Subject to Approval of Seller — Withdrawal before Acceptance. A written order for merchandise, signed by the proposed buyer and sent for approval to the manufacturer, but withdrawn and countermanded before acceptance, cannot be made the basis of an action for damages for breach of its terms.
    Error from Johnson district court; Winfield H. Sheldon, judge.
    Opinion filed January 5, 1907.
    Affirmed.
    
      Harkless, Crysler & Histed, and William S. Hogsett, for plaintiff in error.
    
      Ogg & Scott, for defendant in error.
   The opinion of the court was'delivered by

Porter, J.:

The action in the district court was for the recovery of damages for the alleged breach of a contract for the sale of a thrashing-machine. Defendant had judgment for costs, and plaintiff brings error.

The Northwest Thrasher Company has its main office at Stillwater, Minn., and maintains a branch office at Kansas City. On May 18, 1904, its solicitor called, upon defendant at Cedar Junction, in Johnson county, and after some negotiations an order was given in writing by which defendant proposed to purchase from plaintiff certain machinery, part of the price to be paid in notes and a considerable amount of it in the exchange of old machinery. The order was signed by defendant and mailed .on the same day to plaintiff at its main office. On June 3 a letter of acceptance was mailed at Stillwater, directed to defendant at his post-office, and. the machinery was shipped June 12. Defendant refused to'receive or pay for the machinery, and this action was brought to recover $434.30 upon a clause in the written order which provided that in consideration of the expense incurred by the company in “soliciting, investigating and taking” the order the purchaser agreed to pay all freight charges and ten per cent, of the contract price of the machinery, if he declined to receive it.

The defense relied upon was that defendant had countermanded the order before it was accepted. Upon the trial the court permitted defendant to testify that before the order was signed the agent said to him: “I will let you know in ten days whether the company accepts ... or not.” He also testified that at the end of ten days, not having heard anything from the company or the agent, he went to the branch office of plaintiff at Kansas City and notified the person in charge of the business there that the order was countermanded and not to fill it. The order contained a provision as follows:

“This order is subject to the acceptance and approval of the Northwest Thrasher Company at its home office at Stillwater, Minn., and the purchaser hereby waives notice of thé acceptance or rejection thereof by the company.” .

There was also a provision that its terms and conditions should not be varied without a special written agreement, signed by the company.

The principal errors complained of are with reference to instructions and the admission of evidence which it is said varied the terms of the written contract. Every contention of the plaintiff is based upon the assumption that this writing was a contract, binding upon defendant from the moment it was delivered to the agent, provided only that it was afterward accepted by plaintiff. The clause just quoted provided for a waiver of notice of acceptance, but in the meantime, before the offer was accepted and before it rose to the dignity of a contract, it was countermanded, so .that none of the provisions bound either party. At least, there was evidence tending to show a counter-. mand, and the general verdict established it as a fact.

It follows that if there was no contract there was no error in admitting evidence that the agent agreed to let defendant know what the company did, for he had the right to countermand at any time before acceptance, for any reason or no reason. Moreover, there being no contract, there was no basis for plaintiff’s' claim.

The judgment is affirmed.  