March 15, 1923. The opinion of the Court was delivered by This is an action for damages for an alleged breach of contract. The complaint is as follows:
(1) That the plaintiff, C.A. Rowland, is a citizen and resident of the City of Athens, Ga., doing business under the name of the Rowland Company.
(2) That the defendants, R.W. Pruitt and L.Y. Pruitt, are citizens and residents of Anderson, S.C. doing business *Page 249 at Anderson S.C. under the name of R.W. Pruitt Son.
(3) That the defendants, on or about the 5th day of January, 1921, agreed to purchase of the plaintiff 100 tons of Square Deal Cornco grain feed at $50 per ton, and the plaintiff on his part agreed to sell and deliver said Cornco grain feed at the said price of $50 per ton.
(4) That the defendants have refused to carry out their contract, having failed to order out said merchandise, and plaintiff has requested and urged defendants to accept said merchandise, the defendants failing and refusing to accept same or to pay for same, to the damage of plaintiff in the sum of $770.
(5) That plaintiff has been damaged by the defendants in the sum of $770 by reason of breach of defendants said written contract, the defendants failing and refusing to order and accept said merchandise, and the said sum of $770 is now due and payable from the defendants to plaintiff.
The answer of the defendants is as follows:
(1) The defendants above named, answering the plaintiff's complaint herein, deny each and every allegation in said complaint contained.
(2) And for a further defense show that, even if there were any such agreement between plaintiff and defendant as that alleged in said complaint, the plaintiff utterly failed to comply with its terms and did breach the same.
The alleged contract is as follows:
"Date, Jan. 5, 1921.
"John Wade Sons, "Manufacturers Mixed Feeds, "Memphis, Tenn. "Sold to R.W. Pruitt Son. Address Anderson, S.C. Ship to Anderson, S.C. When ship: Jan. and Feb., buyer's option. Routing: ____. Draft through People's Bank. Tons, 100; bags, 2,000; brands, Cornco H. M. Feed *Page 250 Square Deal; price, $50.00 per ton. Delivered from mill to Anderson, S.C."
Across face:
"Through the Rowland Company, Athens, Ga., subject to Rowland's confirmation by letter."
(Printed conditions):
"No terms or conditions will be recognized other than those stated on this sheet. All contracts are made subject to strikes, wars, fires or other conditions beyond our control. This constitutes a contract when signed by purchaser and salesman and confirmed or approved by shipper and is not subject to change or cancellation without consent of both parties thereto.
"Buyer: [Signed] R.W. Pruitt Son, per L.Y. Pruitt, Manager.
"Salesman: [Signed] B.M. Hughes."
(Underscored words show printed form.)
The letter of confirmation alleged by plaintiff to have been written and mailed, but receipt of which was denied by the defendants, is as follows:
"Jan. 8, 1921
"R.W. Pruitt Son, Anderson, S.C. ___ Gentlemen: We have received your offer through our Mr. Sayer and Mr. Hughes for 100 tons of Cornco grain feed at $50.00 per ton, Anderson, S.C.
"While the figures are awful close, and barely give us enough margin to justify handling it, we have decided to accept the offer, as specified by you for January and February shipment.
"We understand from our Mr. Sayer that you will want to order this out in carload lots, and we trust you will let us have specifications right along, and we assure you that we will do everything we can to get this out promptly.
"Yours very truly,
"The Rowland Company, by _____" *Page 251
The jury rendered a verdict in favor of the plaintiff for $350; and the defendants appealed upon exceptions, which will be reported. The first question that will be considered is whether his Honor the Circuit Judge erred in his construction of the alleged contract.
The agreement hereinbefore set out was on a printed form prepared by John Wade Sons, for the use of their agents, across the face of which was written the words:
"Through the Rowland Company, Athens, Ga., subject to Rowland's confirmation by letter."
It will thus be seen that the printed form was very materially changed, and necessarily those words must be taken into consideration in construing all the other provisions of the agreement. If the added words: "Through the Rowland Company, Athens, Ga., subject to Rowland's confirmation by letter," had not been inserted, the word "Shipper" therein would have been construed to designate John Wade Sons. But there are also the following provisions:
"This constitutes a contract when signed by purchaser and salesman and confirmed or approved by shipper, and is not subject to change or cancellation without consent of both parties thereto."
The agreement did not become effective as a contract until it was confirmed or approved by Rowland. Those who then became parties to the contract were John Wade Sons, R.W. Pruitt Son, and the Rowland Company. The only reasonable construction of the contract is that, if Rowland thought the proposed offer would be advantageous to him, he should have the right to become the shipper, instead of John Wade Sons, by confirming the sale through a letter to R.W. Pruitt Son.
By this construction alone can full effect be given to the word, "both" in the provision which we last quoted. It shows that, although there were three separate parties to the contract — John Wade Sons, R.W. Pruitt Son, and the Rowland Company — only R.W. Pruitt Son and the *Page 252 Rowland Company were to be the active participants as purchaser and shipper.
Furthermore, the contract shows upon its face that either John Wade Sons or the Rowland Company was the shipper. The defendants contend that John Wade Sons was the shipper. It was their duty to demur to the complaint on the ground that there was a defect of parties plaintiff. Section 194, Code 1912. As no such objection was taken, the defendants are deemed to have waived the same. Section 198, Code 1912.
The exceptions raising this question are overruled.
The next question that will be considered is whether there was error on the part of his Honor the presiding Judge in charging the jury:
"If Rowland wrote this letter, signed it, and mailed in the United States mail, in the usual course of business, then the contract would be complete, even though the defendants did not receive it."
The ruling of his Honor the presiding Judge is sustained by the following authorities: Weathers v. W.O.W. (S.C. ), 112 S.E., 44; Hightower v. Life Ins. Co., (S.C.),113 S.E., 478; 6 R.C.L., 612, 613; 13 C.J., 300, 301.
These conclusions practically dispose of all the exceptions.
Affirmed.
MESSRS. JUSTICES WATTS, FRASER and MARION concur.