
    Babcock Brothers Lumber Company v. Georgia, Florida and Alabama Railway Company.
   Atkinson, J.

A letter from a general manager of a railway company, addressed to a lumber company, contained the following: “In view of our intention of putting down 60-pound rail, we will have several miles of 45-pound rail to sell, which we can offer at $26 per ton.” Subsequently the general manager verbally offered to sell to the lumber company 5 miles of 45-pound steel rail at $26 per ton. After this verbal offer, the general manager addressed to the lumber company a letter containing the following: “My conversation with Mr. Babcock on his recent visit to Bainbridge. This company can sell you five miles of 45-pound steel rail at $26 per ton, to be delivered as soon as the new rails, which this company has ordered, arrive, which will possibly be within the next 60 days.” In reply to this, an authorized agent of the lumber company wrote to the railway company as follows: “We have your esteemed favor of April 8 in regard to the 45-pound steel relayers, and accept your offer. Please consider the deal closed. In billing these, make two miles cash, and three miles to be paid for by note due a year from now, that is, April 1, 1905. ICindly deliver our first two miles at your earliest convenience, and the next three miles at your very latest convenience. We mean by this that we need the two miles, ‘ and do not need the three miles until early next year.” Held: (1) The acceptance was not unconditional, but, construing the whole together, embraced new terms not referred to in the offer, which do not appear to have been accepted by the railway company; and no complete contract was ever made. There was no suggestion of credit in the offer. (2) A suit by the lumber company against the railway company for a 'breach, of the contract alleged to have arisen from the correspondence above referred to was properly dismissed on demurrer.

Submitted July 18, 1906.

Decided January 16, 1907.

Complaint. Before Judge Harrell. City court of Bainbridge. December 18, 1905.

Cited in the briefs: Civil Code, §§ 3550, 3637; Ga. R. 81/704; 95/518; 116/108; 106/864; Clark on Contracts, 37; Pars. Con. (6th ed.) 475; 56 Am. R. 371; 3 L. R. A. 94.

Russell & Hawes, for plaintiff in error.

Donalson & Donalson, contra,

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent.  