This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The courts have reached different results in construing orders for the shipment or manufacture of goods. In many cases such order is regarded as an offer which is to be accepted by doing the act therein specified, which in such cases is manufacturing or shipping the goods.1 If an order for goods has been sent, a shipment of such goods, within a reasonable time or within the time fixed by the offer, is "an acceptance of such order, even if no notice is given that such shipment is to be made.2 If A gives an order to B for goods, subject to B's approval, B's act in shipping such goods is an acceptance, although he gives no notice thereof to B.3 Such order can not be revoked after the goods are shipped.4 In some of these cases the goods were received by the party who sent the order,5 but the same result has been reached where, without the fault of the seller, the goods were never delivered.6 An offer which calls for the manufacture of certain goods to order is accepted by beginning the manufacture thereof.7 A ordered certain goods to be made up by B, and to be sent to A by express C. O. D. B made them up and shipped them to A by express C. O. D., without any other acts of acceptance. B refused to accept them. It was held that B's acts in making them up and delivering them to the express company amounted to an acceptance of A's order.8 An attempted revocation made after the goods have been shipped comes too late.9 If the seller gives notice to the buyer and also ships the goods, it is still clearer that the buyer can not revoke.10 On principle the seller should also be bound when he has once shipped such goods.11 If, by the terms of the order, the goods may be shipped in installments and the seller ships part thereof, and the seller thereupon refuses to ship the rest of such goods, he is liable in damages.12 If an offer provides for delivery of certain goods, delivery of such goods in accordance with the terms of such offer before the offer is revoked or has lapsed, is as much an acceptance thereof as an acceptance by words would be.13 After the buyer has accepted some of the goods thus shipped, he is bound by the contract and his refusal to accept the rest of such goods is a breach.14 In other cases, such order is regarded as an offer to be accepted by making a promise to ship such goods, which may be accepted by making such promise, and which may be accepted only by a promise.15 If A orders goods and B promises in a reasonable time to ship them, the contract is said to be complete,16 and A's subsequent refusal to accept such goods and to pay for them is a breach.17 A's offer to buy all the goods that B might deliver at a specified place within a specified time, can be accepted only by B's notifying A of such acceptance. Delivery of the goods is not sufficient.18 An order for goods to be manufactured and shipped can not be accepted by attempting to fill it without notice to the buyer,19 and in such case the buyer can cancel such order if notice of accepting such order is not given to him within a reasonable time.20 The difference in the results thus reached may be due to differences in the wording of the orders, in trade usages, in the surrounding facts and circumstances and the like. The reason for the difference in result rarely appears in the facts disclosed. In other cases it is said that such offer may be accepted either by making a promise or by shipping the goods as the seller may see fit.21 Thus if A promises to pay B for certain goods if B delivers them to X, B accepts by delivering them to X, even if B has not notified A.22 Accepting goods is an acceptance of the offer under which such goods are sent.23
10 Black v. Grabow, 216 Mass. 516, 52 L. R. A. (N.S.) 569, 104 N. E. 346.
11 Train v. Gold, 22 Mass. (5 Pick.) 380.
12 Superior Consolidated Land Co. v. Bickford, 93 Wis. 220, 67 N. W. 45.
13 Patton v. Hassinger, 69 Pa. St. 311.
14 Sharp v. Bates, 102 Md. 344, 62 Atl. 747.
15 Moore v. McKenney, 83 Me. 80, 23 Am. St. Rep. 753, 21 Atl. 749; Elting v. Vanderlyn, 4 Johns. (N. Y.) 237;
Strong v. Sheffield, 144 N. Y. 392, 39 X. E. 330. In many of these cases A probably knew that B was forbearing suit.
1 Main v. Tracey, 76 Ark. 371, 88 S. W. 981; Main v. Tracy, 86 Ark. 27, 109 S. W. 1015.
2 Alabama. Sturdivant v. Mt. Dixie Sanitarium Land & Investment Co., 197 Ala. 280, 72 So. 502.
Arkansas. Main v. Tracy, 86 Ark. 27, 109 S. W. 1015.
Iowa. McCormick Harvesting Machine Co. v. Markert, 107 la. 340, 78 N. W. 33; Aultman v. Nilson, 112 la. 634, 84 N. W. 692; Kaufman Bros. v. Mfg. Co., 78 la. 679, 16 Am. St. Rep. 462, 43 N. W. 612; Petroleum Products Distributing Co. v. Alton Tank Line, 165 la. 398, 146 N. W. 52.
Massachusetts. Mauger v. Crosby, 117 Mass. 330.
Michigan. National Cash Register Co. v. Dehn, 139 Mich. 406, 102 N. W. 965.
Nebraska. Monarch Portland Cement Co. v. Creedon, 94 Neb.-185, 142 N. W. 906.
North Carolina. Ober v. Smith, 78 N. Car. 313.
South Carolina. Burwell v. Chapman, 59 S. Car. 581, 38 S. E. 222.
South Dakota. Nicholas & Shepard Co. v. Horstad, 21 S. D. 80, 109 N. W. 509.
Washington. Whitman Agricultural Co. v. Strand, 8 Wash. 647, 36 Ac. 682; McCormick Harvesting Mach. Co. v. Richardson, 89 la. 525, 56 N. W. 682, is apparently contra'. In this case A sent to B an order for goods to be shipped in six months. B shipped such goods within such time and A refused to accept them. B had not given any other notice of his acceptance of A's order. It was held that no contract existed.
3 Sturdivant v. Mt. Dixie Sanitarium, Land & Investment Co., 197 Ala. 280, 72 So. 502.
4 Main v. Tracy, 86 Ark. 27, 109 S. W. 1015.
5 Mauger v. Crosby, 117 Mass. 330; Hallwood Cash Register Co. v. Millard, 127 Mich. 316, 86 N. W. 833; National Cash Register Co. v. Dehn, 139 Mich. 406, 102 N. W. 965; Monarch Portland Cement Co. v. Creedon, 94 Neb. 185, 142 N. W. 906; Burwell v. Chapman, 59 S. Car. 581, 38 S. E. 222.
6 Ober v. Smith, 78 N. Car. 313. 7 Loyd Mercantile Co. v. Long, 123
La. 777, 49 So. 521.
8 Croak v. Cowan, 64 N. Car. 743.
9 Main v. Tracey, 76 Ark. 371, 88 S. W. 981; Main v. Tracy, 86 Ark. 27, 109 S. W. 1015; Burwell v. Chapman 59 S. Car. 581, 38 S. E. 222; Whitman Agricultural Co. v. Strand, 8 Wash. 647, 36 Ac. 682; Hawkinson v. Harmon, 69 Wis. 561, 35 N. W. 28.
10 American Case & Register Co. v. Wetzler, 148 Wis. 168, 134 N. W. 489. [The notice in this case was that the "order will receive the best of attention" which is held, in some jurisdictions not to amount to acceptance.]
11 Monarch Portland Cement Co. v. Creedon, 94 Neb. 185, 142 N. W. 906.
12 Monarch Portland Cement Co. v. Creedon, 94 Neb. 185, 142 N. W. 906.
13 Louisville & N. R. Co. v. Coyle, 123 Ky. 854, 99 S. W. 237 [denying rehearing Louisville & N. R. Co. v. Coyle, 123 Ky. 854, 97 S. W. 772].
14 Ziehme v. Parish, 74 Kan. 542, 87 Ac. 685; Louisville & N. Ry. Co. v.
Coyle, 123 Ky. 854, 97 S. W. 772, 99 S. W. 237; Sharidan Coal Co. v. C. W. Hull Co., 87 Neb. 117, 127 N. W. 218.
15 McCormiek Harvesting Mach. Co. v. Richardson, 89 la. 525, 56 N. W. 682.
16 Minneapolis Threshing Mach. Co. v. Zemanek, 130 la. 120, 106 N. W. 512.
17 Minneapolis Threshing Machine Co. v. Zemanek, 130 la. 120; 106 N. W. 512.
18 Ragnell Timber Co. v. Spann, 102 Ark. 621, 145 S. W. 546.
19 Curtis v. American Case & Register Co., 38 D. C. App. 115.
20 Curtis v. American Case & Register Co, 33 D. C. App. 115.