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 *16for 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.Judgment reversed.
Jenkins, P. •/., and Bell, J., concur.