(dissenting).
In stating briefly the reasons for my inability to concur in the opinion of the majority, reference will be made to the parties as they appeared in the court below. The proposal, called a quotation, expressly provided that prompt acceptance by plaintiff and written approval of defendant at its home office should constitute a binding contract. It may be conceded that Naylor did not have authority to make such a contract for his principal, and that he lacked authority to waive the requirement of such approval. But he was the general agent of defendant in Oklahoma, clothed with authority to solicit business, prepare and present instruments of that kind to contractors and forward them to the home office, and generally to do all things in furtherance of the business. The quotation was prepared and signed in the usual, ordinary, and regular course of business. Naylor retained one copy of it after it was executed on November 23, 1932, and delivered one copy to plaintiff; and he did likewise concerning the modification executed on January 7, 1933. That constituted retention and possession of the defendant; and whether he delayed in forwarding it to the home office did not affect the rights of plaintiff as to the time within which defendant should accept or reject it. Naylor knew at the time the original quotation was signed the circumstances under which plaintiff was to construct the building. He knew that plaintiff was required to complete it within 140 days and was subject to the severe penalty of $70 for each day thereafter until it was completed. He further knew that plaintiff was depending upon defendant to furnish the material, and that he was going forward permitting the 140 day period to be consumed and the time for the imposition of the penalty to draw nearer and • nearer without making any effort to secure the steel elsewhere, all in reliance upon defendant. With that knowledge, defendant kept and retained the quotation from its execution, and did not notify plaintiff that it was either accepted or rejected until March 20, 1933, at which time it advised him that it elected to reject. The period thus intervening was 117 days. In other words, with knowledge that plaintiff had only 140 days within which to complete the building; that he would be subject to the penalty after the expiration of that time; and that he was relying upon it to furnish the material necessary to save him from the penalty, defendant waited 117 days and then undertook .to exercise the privilege of rejection. Ordinarily an offeree has the right to make no reply to an offer and his silence cannot be construed as an acceptance. But the special circumstances presented here required acceptance or rejection within a reasoñable time. Defendant could not wait beyond a reasonable time and then reject. Failure to act within a reasonable time amounted to acceptance. Laredo National Bank v. Gordon, 5 Cir., 61 F.2d 906, certiorari denied, 289 U.S. 726, 53 S.Ct. 524, 77 L.Ed. 1476; Cole-McIntyre-Norfleet Co. v. Holloway, 141 Tenn. 679, 214 S.W. 817, 7 A.L.R. 1683; Sioux Falls Adjustment Co. v. Penn Soo Oil Co., 53 S.D. 77, 220 N.W. 146; Hendrickson v. International Harvester Co., 100 Vt. 161, 135 A. 702; Hobbs v. Massasoit Whip Co., 158 Mass. 194, 33 N.E. 495.
The majority lay stress upon the correspondence between the parties. It was not until late in January that anything appeared in the correspondence which could be construed as touching even indirectly or remotely upon the question of the approval or rejection of the contract. At least 60 days of the allotted time for completion of the building had then elapsed. And from that time until the notice of rejection, plaintiff was warranted in believing from the correspondence that defendant intended to furnish the material but was making use of the situation to compel payment of the old account. The attitude of defendant was well calculated to toll him into that belief. Instead of acting sooner, defendant waited until it had thus secured payment of the account, and then when not to exceed 23 days remained for completion of the building before the penalty provision became operative, it was stated for the first time that approval would be withheld. The correspondence was not enough as a matter of law to relieve defendant of the duty to act within a reasonable time, or to foreclose plaintiff from recovery. The question whether defendant failed to act within a reasonable time was one of fact for .the jury. The court submitted it under appropriate in*913structions and the jury resolved it against defendant. There was substantial evidence to support the finding, and it should not be disturbed on appeal.
The verdict was for the full amount alleged in 'the petition and sought in the prayer. No evidence was offered on the trial in support of the alleged items (1) traveling expenses, $65.80; (2) additional material purchased or furnished, $103.37; (3) additional labor caused by delays, $1,-180.58; (4) extra overhead expense at the rate of $150 per month, $290; and (5) extra pay to superintendent at $6 per day, $348. These items aggregate $1,987.75. The verdict cannot stand in respect to them, but there was substantial evidence to support it as to all others.
Generally an appellate court may not direct entry of a judgment for the correct amount, but it may affirm on condition that a remittitur be filed within a fixed time. United States Potash Co. v. McNutt, 10 Cir., 70 F.2d 126; United States v. Utah-Idaho Sugar Co., 10 Cir., 96 F.2d 756. The judgment should be reversed and the cause remanded for a new trial unless a remittitur in the sum of $1,987.75 be filed within a time to be fixed; but if such remittitur is seasonably filed, the judgment, less the amount of the remittitur, should be affirmed.