
    Florence V. McLean, Respondent, v. Pastime Gymnasium Association et al., Appellants.
    St. Louis Court of Appeals,
    December 10, 1895.
    1. Contracts: acceptance of offer. An offer to enter into a definite contract must be unconditionally accepted within a reasonable time in order to bind the proposer. A counter proposition, which in any way qualifies the offer by new matter, amounts to a rejection, and, unless the proposer renews the offer, he can not afterward be bound by an unconditional acceptance.
    2. -: -: EFFECT OF NEW PROPOSITION AFTER ACCEPTANCE. Yet after an offer has become binding by the acceptance of it, the acceptor does not lose his right to enforce it by subsequently submitting a new offer, but may, on the rejection of the latter, reaffirm his original acceptance within a reasonable time and before any change has taken place in the circumstances of the proposer.
    
      Appeal from the St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Affirmed.
    
      Acliel Sherwood for appellants;
    While an offer by letter may become a contract if the offer be accepted, no contract is consummated unless the acceptance is unequivocal and unconditional, and unless it plainly and clearly accepts the offer tendered without any modification or condition whatsoever. JRailroadv. Columbus Mill, 119 U. 8. 149; Fox v. Turner, 1 111. App. 153; Egger v. Nesbitt, 122 Mo. 667; Cangas v. B/umsey Mfg. Co., 37 Mo. App. 297; Falls 
      
      Wire Mfg. Co. v. Broderick, 12 Mo. App. 378; Lawson on Contracts, par. 17; National Bank v. Hall, 101 U. S. 43; Jennessv. Mt. Hope Iron Co., 53 N. Y. 20; Baker v. Johnson County, 37 Iowa, 186; Hyde v. Wrench, 3 Beav. 334; Sheffield Canal Co. v. Railroad, 3 Am. and Eng. R. R. Oases; 132.
    
      Orr, Christie & Bruce for respondent.
   Rombauer, P. J.

An offer to enter into a definite contract must be unconditionally accepted within a reasonable time to be binding on the proposer. Where a counter offer is submitted which in any way qualifies the terms of the offer by new matter, the original offer is thereby rejected, and the party to whom the offer was made can not afterward bind the proposer by an unconditional acceptance, unless the original offer is renewed. Hyde v. Wrench, 3 Beav. 334; Minneapolis & St. Louis Railway v. Columbus Rolling Mill, 119 U. S. 149; Egger v. Nesbitt, 122 Mo. 667; Falls Wire Co. v. Broderick, 12 Mo. App. 378; Potts v. Whitehead, 23 N. J. Eq. 512.

The defendants contend that, when the law thus stated is applied to the facts shown by the evidence in this case, it must lead to the reversal of the judgment.

The plaintiff sued for damages resulting to her from the breach by the defendants of a contract of employment, and the action was tried by a jury. The only points for our consideration are whether the plaintiff has given substantial evidence that she unconditionally accepted the defendants’ offer of employment before the same was withdrawn, and whether it conclusively appears that she interposed a qualified or conditional acceptance before accepting it unconditionally.'

Touching the following surrounding circumstances there is no controversy: Immediately' preceding the offer hereinafter set out, the plaintiff had been in the employ of defendants for two years as a gymnasium instructress in the ladies’ department at a salary of $1,000 per year. The department was not self-sustaining. In May, 1893, the plaintiff applied for a re-engagement for the next scholastic year on certain terms, to which the defendants replied by their secretary under date of May 23:

“In reply to your letter of May 21, 1893, I am instructed to write you that the board of managers have reconsidered the subject of a ladies’ department for another season, and now make you this proposition:
“A contract with you for next season, October 15, 1893, to June 1, 1894, at $750 for the season, with the understanding that, if the ladies’ department is brought up to a self-sustaining point and over by paying you $125 a month, and running the department as heretofore, you will also receive the difference between $750 and the amount you would get were you receiving $125 per month.
“ Should this department not prove self-sustaining on above basis, you are to receive only $750.”

All the evidence also concedes that in prior years the plaintiff had a written contract with the defendants prescribing her duties in detail, and fixing her compensation at $1,000 per annum, unconditionally.

Beyond this the testimony of the plaintiff and that of defendants’ witnesses is wholly irreconcilable. However, under the rules governing appellate procedure in this state, we must determine the point in controversy by assuming that plaintiff’s evidence is true, as it is neither so improbable, nor so opposed to all surrounding circumstances, as to justify us in' vacating the verdict under the rule stated in Price v. Evans, 49 Mo. 396, Spohn v. Railroad, 87 Mo. 74, and kindred cases.

The plaintiff testified that, after she received this communication, she at once called on the defendants’ secretary, and asked him what it meant; that she was told by him that it meant that her compensation was to be $750 per annum at all events, with an increase contingent upon the net earnings of her department, the entire compensation to be limited to $125 per month of the scholastic year, that is to say, that she was to receive not less than the smaller, nor more than the larger sum stated, and might contingently receive any intermediate sum between the two. She thereupon left, and returned next morning, and stated to the secretary: “I want to accept that proposition.” She then copied her contract of former years, adding to it the proposition embodied in the letter of May 23, and presented it to the secretary for execution. The secretary referred her to the chairman of the defendants’ house committee, to whom she also stated that she u wished to accept the contract,” and whom she also requested to execute the contract which she had presented to the secretary. The chairman of the house committee refused to execute the contract as too informal, and-drew another, which the plaintiff refused to execute, because it embodied certain material alterations. The plaintiff’s testimony substantially concedes that thereafter she presented another contract to the defendants’ chairman of the house committee, which embodied some new propositions, and which he declined to execute, and which the defendants’ board declined to accede to. The plaintiff was informed of this fact, and thereupon, on the second day of June, 1893, addressed to the defendants’ secretary the following note:

“I am in receipt of your favor of the 23d ult., containing proposition from the board of managers in relation to the conduct of the ladies’ department for the season 1893-4, a proposition which I consider fair to both parties, and which! hereby accept.”

The defendants declined to entertain this acceptance as coming too late, and so advised the plaintiff. In addition to this there was evidence for plaintiff tending to show that, after May 23, and prior to the disagreement about terms of the contract, the plaintiff in presence of some of defendants’ officers did publicly announce that the plaintiff was re-engaged for another year; also that a similar announcement was made by the chairman of the defendants’ house committee. There was no evidence that any other change in the circumstances of the parties took place between the. twenty-third of May and the twenty-third of June following, except that plaintiff had declined an engagement offered to her by other parties.

From this evidence, if found by the jury to be true, they were warranted in finding that the plaintiff had unconditionally and orally accepted the defendants’ offer, both by her statements to that effect to defendants’ managing officer and by her presenting the contract reduced to writing for execution to the defendants’ officers. Having done so, she was bound, as the contract is not within the statute of fraud, and her subsequently insisting on a modification does not preclude her recovery under the rule stated at the beginning of this opinion. The contract by such acceptance became complete and enforcible on both sides, and, although the plaintiff subsequently made another offer which the defendants rejected, yet ehe was at liberty to reaffirm her original acceptance within a reasonable time if no change in the circumstances of the party sought to be held to the contract took place in the interim.

On this subject the court gave, at the instance of defendants, the following instruction:

“The court instructs the jury that the plaintiff is not entitled to recover in this action, unless they find and believe from a preponderance of the evidence that she unequivocally and unconditionally accepted-.the proposition of the defendants contained in their letter of May 23, 1893, to employ her as mentioned in these instructions; and if the jury believe from the evidence that the plaintiff signified to the defendants; or their agent, by any statement of hers that she would not accept the proposition above named exactly as made, then, and in that event, the plaintiff was not at liberty afterward to bind the defendants to that proposition by notifying them that she accepted it.”

We think that this instruction placed the defendants’ evidence fully and fairly before the jury, and that another instruction asked by them on the same subject in a somewhat modified form was, for that reason, properly refused. No just exception can be taken to the plaintiff’s instructions given. We are dealing with the case, not as chancellors reviewing the evidence, but as judges limited to a review of errors of law. None such appearing in the record, we must affirm the judgment. All the judges concurring, the judgment is affirmed.  