
    12619.
    Estes Lumber Company v. Palmyra Yellow Pine Company.
   Stephens, J.

1. The acceptance of an offer,-not in the terms in which it was made, but upon certain terms and conditions contained in the acceptance, amounts to a counter offer by the offeree; and when the counter offer is accepted by the person making the first offer, there is such a meeting of the minds between the parties as will constitute a contract.

2. Where one person, makes a written communication to another, proposing to purchase from the latter certain lumber, and the person receiving the communication communicates to the person making the offer an acceptance upon certain terms and conditions, a communication afterwards from the first person to the second person, urging the shipment of the lumber, will be regarded as an acceptance by the first person of the counter offer with the condition made to him by the second person, and therefore the creation of a contract between the parties.

3. In a suit by the first party against the second, to recover damages for the failure of the latter to deliver the lumber, a demurrer to the petition, upon the ground that no contractual relation existed between the parties, was improperly sustained. The petition set out a cause of action, and was good against the demurrers interposed except the demurrer to paragraph 3 of the petition.

4. The allegations contained in paragraph 3 of the petition, to the effect that the defendant had promised to respond to the plaintiff in damages for liis failure to deliver the lumber contracted for, is irrelevant and immaterial and was properly stricken on demurrer.

Decided July 24, 1922.

Adhered to on rehearing, September 30, 1922.

Action for breach of contract; from city court of Albany — Clayton Jones. May 17, 1921.

The petition, as amended, included the following communications :

“Palmyra Yellow Pine Company, Inc., Birmingham, Ala. Albany, Ga., May 8th, 1919. Sold, to Estes Lumber Company, North Birmingham, Ala. Our No. 209-b. Your No. -. Shipment prompt. Terms: 2% net or 60 days net acceptance. Ship to same route via - 1 .car 4" # 1 common flooring $36.50. Prices f. o. b. mill. Freight allowed on North Birmingham rate. We .acknowledge your order as above. Please examine carefully and advise if incorrect. It is accepted subject to the following conditions: All discounts on net, after deducting freight. Claims to be made immediately upon arrival of ear. ’No allowance for switching at destination. Our responsibility ceases on issuance of bill of lading by carrier. Shipment contingent on delays by •carriers, strikes, accidents, car shortage, embargoes, and other causes beyond our control. All lumber manufactured and graded under the rules of the Southern Pine Association, of the Georgia and Florida Saw Mill Association. Palmyra Yellow Pine Company, by W. S. Borland.”

“August 2d, 1919. Palmyra Yellow Pine Co., Albany, Ga. Gentlemen: Kindly refer to our order #1568, 1 car 4" #1 common flooring, and let us know by return mail whether we can expect shipment of stock . covering ' under this order. Yours very truly, Estes Lumber Company,--President.”

“ Estes Lumber Company, Birmingham, Ala. Gentlemen: Replying to your favor of the 2d relative to your order 1568, 1 common flooring,- bog to say that we accepted the order in good faith and in the same good faith will fill it just as quickly as possible. As you already know, practically every mill has been handicapped on account of wet weather, and we have had about six months of it. Furthermore, the advance in the price of lumber has made it exceedingly hard to get orders shipped which had been accepted at a low price. A majority of the mills are coming clean, but high prices have made crooks out of some men who previously thought they were honest. Our representative was at the mill having your order a few days ago, and from his report we believe that the car' will move to you in the near future. Your very truly, Palmyra Yellow Pine Company.” R. E. Ferrell, for plaintiff. Milner & Farhas, for defendant.

Judgment reversed.

Jenkins, P. •/., and Bell, J., concur.  