On Petition for Rehearing. This case is again before us on a petition for a rehearing, it being insisted that the twenty-four hours' time given by Petway in his letter for the performance of the contract was a reasonable time, as the tickets could have been printed in two hours. This petition must be denied for the reasons stated in our original opinion, that is, the last letter written by Petway, giving twenty-four hours in which to comply, added new conditions: that the company should deliver substitute tickets not later than 2 P.M., and place at Bauman's Shop in the Warner Building a young lady to handle both Loew's and Knickerbocker tickets, receiving all cash for both tickets, and to separate the Loew's sales and the monies therefor and turn over to the manager of Loew's Theatre all money for said tickets each day, and she was to have an assistant to relieve her and to conduct the sale of said tickets until the agreement was fulfilled. The letter further provided that the expiration date of the tickets was extended to October 1st, and that Petway was to pay $750 to Loew's Theatre, $150 to be deposited as a guarantee for the contestants' trip. It also provided that this new "contract voids previous agreement," the terms of which are set out in the original opinion.
We held that this constituted a new proposition, different from the old agreement, and he gave the theatre company twenty-four hours to accept this proposition, which was not accepted. The extension of time for the fulfillment of the original contract was there made conditional upon the theatre's agreeing to do additional things not provided for in the original contract, and these things were required to be done within twenty-four hours. One hour after the time expired the attorney for the theatre telephoned Petway and tried to adjust the matter, but Petway refused to further negotiate. As held by us in the original opinion, the plaintiff below, Petway, should have set a reasonable time for the performance of the contract without adding any additional conditions to it. In other words, after the contract had been revived, it was necessary to give the defendants reasonable time in which to comply in order to make time as of the *Page 70 essence of the contract, and we think that the letter of July 10th, adding other conditions to the proposition, was not notice to comply under the old contract but was a new proposition.
An offer must be unconditionally accepted, and if the acceptance is conditional or the terms are varied from the offer this constitutes a new offer and cannot be relied upon as an acceptance of the original offer. 13 C.J., 281; Canton Cotton Mills v. Overall Company, 149 Tenn. 18, 257 S.W. 398.
The same is true of notice to comply in order to make time as of the essence of the contract.
It results that the petition for a rehearing must be denied and the costs adjudged against Petway.
Felts, J., concurs.