The evidence of the contract between these parties is contained in the letter of Bugg and Bryan of Jan uary 24th and the telegram of Davis of the next day. The subsequent negotiations related to differences which had arisen between them concerning the places cf delivery of the grain as understood by the parties, and never resulted in any final agreement.
Stated most favorably for appellee, the offer of the appellants was to purchase from him certain kinds and grades of grain at the prices named, delivered on the track at Biaudinsville, subject to Peoria weights and inspection, all over ten cars to be at their option.
Story says, in his work on Sales, Sec. 136, “ If a proposition be accompanied with certain conditions or limitations, the acceptance must correspond to it exactly, for if any alteration be suggested or any exception be made to its exact terms, the provisional acceptance becomes' merely a new proposition.” Thus, for instance, if a certain number of goods of a certain quality be ordered at the same time, though at distinct prices, the orderer is not bound to accept goods of a different quality or quantity. So, also, if goods of a certain brand or mark be ordered the orderer is not bound to receive goods of a different brand or mark, although they be of equal or superior quality.” Parsons says: “ It becomes a contract only when, the proposition is met by an acceptance which corresponds with it entirely and adequately. Many cases turn upon the question whether this assent to the proposition was entire and adequate. The principle may be stated thus: The assent must comprehend the whole of the proposition; it must be exactly equal to the extent and provisions, and it must not qualify them by any new matter. The respondent is at liberty to accept wholly or reject wholly; but one of these things he must do, for if he answers not rejecting, but proposing to accept under some modifications, this is a rejection of the offer.”
The cases of Jordan v. Norton, 4 M. & W. 155; Hutchinson v. Bowker, 5 M. & W. 535; Sivewright v. Archibald, 6 E. L. & E. 286; Bruce v. Pearson, 3 Johns. 534; Tuttle v. Love, 7 Johns. 470; Eliason v. Henshaw, 4 Wheaton, 225; and Rommel v. Wingate, 103 Mass. 327, we refer to as maintaining and illustrating the principle stated from the text books.
Tested by the rule thus declared it is quite clear that the proposition of the appellants was not accepted by appellee in any such manner as would constitute a binding contract. The offer was that they would take ten cars, over that amount being at their option, and the acceptance is entire for ten cars of yellow and ten cars white. The acceptance seems to be indivisible for the twenty cars.
Again the proposition was to purchase “Hew Ho. 2 white corn, new high mixed corn,” and the acceptance was for ten cars of “ yellow ” corn.
It is conceded that yellow corn is a different grade and quality from any grade mentioned in the offer, but this variance is sought to be obviated by proving that it is a better quality, and, under the rule of the Board of Trade of Peoria, must be accepted in lieu of a lower grade. That rule was introduced in evidence and is as follows:
Section 7. On all contracts for grain for future delivery, the tender of a higher grade, in whole or m part, than the one contracted for, shall be deemed sufficient; provided, the higher grade tendered is not of a color or quality that will depreciate the value of the other if mixed.
It will be noticed, that giving the rule the validity claimed for it by counsel, it does not purport to make contracts for parties, nor to compel a party when making a proposition to purchase one kind or grade of grain, to assent to an acceptance variant from his offer.
The regulation can onlv affect the fulfillment of existing contracts for the future delivery of grain and can have no bearing upon the manner of making the contract.
The attempted acceptance was but a new proposition which required the assent of appellants to its terms in order to make it binding. This assent they never gave.
It follows that no right of recovery was shown, and we reverse the judgment without passing upon the other questions made.
Judgment reversed.