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is, that the other persons who went in with him did get off safely. The cause of his injury was that either he or the fruit vender dropped the coin, and plaintiff was trying to recover it, thereby delaying his movement in leaving the car. Certainly the engineer could not be expected to know that some one was on the car buying lemons, that a coin had been dropped and that it would require some time to recover it; nor is there any evidence that anyone 268 connected with the train knew that plaintiff was on the car. The fruit vender, who was on the same car, is not shown to have been jerked or jolted. The evidence that the jerk was any more severe than was proper or necessary in moving the train, as "made up,' was very slight.

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The plaintiff when he went into the car, on his own business, without invitation or inducement or, as he says, any knowledge of any custom for persons to do so, but simply by the silent acquiescence of defendant's agents, took the risk incident to the movement of the train.

In the absence of any evidence of breach of duty on the part of the defendant, the motion for nonsuit should have been allowed. For refusal to do so the judgment must be reversed: Hollingsworth v. Skelding, 142 N. C. 246, 55 S. E. 212.

A Railway Company is not liable for the accidental death of a boy permitted by the conductor, against its rules, to ride gratuitously on the train to sell newspapers: Duff v. Allegheny R. R. Co., 91 Pa. 458, 36 Am. Rep. 675. See, too, Padgitt v. Moll, 159 Mo. 143, 81 Am. St. Rep. 347. As to the duty of a railway company to persons entering a car to assist a passenger taking passage thereon, see Seaboard Air Line Ry. v. Bradley, 125 Ga. 193, 114 Am. St. Rep. 196; as to its duty to a person assisting to make a shipment of goods, see State v. Western Maryland R. R. Co., 98 Md. 125, 103 Am. St. Rep. 388; and as to its liability to persons going to its station for business purposes or to meet passengers, see Duhme v. Hamburg-Amertcan Packet Co., 184 N. Y. 404, 112 Am. St. Rep. 615; Klughberz v. Chicago etc. Ry. Co., 90 Minn. 17, 101 Am. St. Rep. 384, and cases cited in the cross-reference note thereto.

CHEROKEE TANNING EXTRACT COMPANY v. WESTERN UNION TELEGRAPH COMPANY.

[143 N. C. 376, 55 S. E. 277.]

CONTRACTS-Offer and Acceptance.-If a letter from one person to another states, "Kindly advise us by wire Monday if you can use 1,500 creosote barrels between now and January 1st at 95 cents, delivered in carload lots," such letter is a mere trade inquiry, and is not a legal offer, binding on acceptance. (p. 807.)

CONTRACTS-Offer and Acceptance.-An offer, to constitute a contract, must be one which is intended of itself to create legal relations on acceptance, and if it is an offer merely to open negotiations which may ultimately result in a contract, it is not binding. (p. 807.)

CONTRACTS-Offer and Acceptance.-An acceptance of an offer to constitute a contract and bind the other party must be unconditional and unqualified, and must correspond exactly to the terms of the offer. (p. 808.)

Action for damages from negligent delay of the defendant to transmit and deliver a telegram. Judgment for plaintiff. Appeal by defendant.

Dillard & Bell, for the plaintiff.

Merrick & Barnard and T. H. Busbee & Son, for the defendant.

376 BROWN, J. There is no dispute as to the material facts. The evidence shows that on November 7, 1903, an agent of the Standard Oil Company at Wilmington, North Carolina, wrote to the plaintiff, at Andrews, North Carolina, a letter containing, among other things, this request: "Kindly advise us by wire Monday if you can use about 1,500 creosote barrels between now and 377 January 1st, at 95 cents each, delivered in carload lots." That the plaintiff received this letter on Monday, November 9th, and at 7:30 P. M. of that day filed with the defendant, at its Andrews office, a message addressed to the Standard Oil Company, Wilmington, North Carolina, and reading as follows: "We accept your offer 1,500 barrels as per yours of the 7th." This message was delivered to the sendee at 10:36 A. M., November 10th. At the same time it wrote to plaintiff, the oil company addressed a similar letter to the Brevard Tanning Company and others. The latter company purchased the barrels by telegram received by the oil company shortly before plaintiff's message. The plaintiff claims substantial damage. Defend

ant requested the court to charge that plaintiff was entitled to recover nominal damages only, to wit, the price paid for the telegram. We think this instruction should have been given.

Damages are measured in matters of contract not only by the well-known rule laid down in Hadley v. Baxendale, 9 Ex. 341, but they must not be the remote, but the proximate, consequence of a breach of contract, and must not be speculative or contingent. Unless the reply of plaintiff by wire to the letter of the oil company created a contract between the two for the sale and delivery of fifteen hundred barrels at ninety-five cents each, then plaintiff can recover only nominal damages, for any other damages would necessarily be purely speculative or contingent. The language of Brannon, J., in a similar case in West Virginia is appropriate to this: "But the trouble facing the plaintiff in this case is that there was no final contract between the parties, but only a proposal for a contract, and there can be no contract without both a proposal and its acceptance. The failure of the telegraph company did not cause the breach of a consummate contract; it only prevented one that might or might not have been made': Beatty L. Co. v. Western Union Tel. Co., 52 W. Va. 410, 44 S. E. 309. See, also, Richmond Hosiery 378 Mills v. Western Union Tel. Co., 123 Ga. 216, 51 S. E. 290, and Wilson v. Western Union Tel. Co., 124 Ga. 131, 52 S. E. 153. The offer must be distinct as such and not merely an invitation to enter into negotiations upon a certain basis: CheneyBigelow Wire Works v. Sorrell, 142 Mass. 442, 8 N. E. 332; Beaupre v. Pacific & A. Tel. Co., 21 Minn. 155; 24 Am. & Eng. Ency. of Law, 1029, and cases cited.

Again, the offer must specify the specific quantity to be furnished, as a mere acceptance of an indefinite offer will not create a binding contract: McCaw Mfg. Co. v. Felder, 115 Ga. 408, 41 S. E. 664; 24 Am. & Eng. Ency. of Law, 1030, note 1, and cases cited. "The offer must be one which is intended of itself to create legal relations on acceptance. It must not be an offer merely to open negotiations which will ultimately result in a contract": 1 Paige on Contracts, sec. 26, and cases cited; Clark on Contracts, sec. 29.

In Moulton v. Kershaw, 59 Wis. 316, 48 Am. Rep. 516, 18 N. W. 172, the defendants wrote to the plaintiff as follows: "In consequence of a rupture in the salt trade, we are authorized to offer Michigan fine salt in full carload lots of 80

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to 75 barrels, delivered at your city at 85 cents per barrel to be shipped per C. & N. W. R. R. Co. only. At this price it is a bargain, as the price in general remains unchanged. Shall be pleased to receive your order." The plaintiff at once telegraphed the defendant: "Your letter of yesterday received and noted. You may ship me two thousand barrels Michigan fine salt as offered in your letter." The defendant declined to deliver the salt, and plaintiff sued for damages. The supreme court of Wisconsin, sustaining a demurrer to the complaint, held that the communications between the parties did not show a contract; that the letter of the defendant was not such an offer as plaintiff could by an acceptance change into a binding agreement: See, also, Smith v. Gowdy, 90 Mass. 566.

The letter from the oil company to the plaintiff was a mere inquiry: Walser v. Western Union Tel. Co., 114 N. C. 440, 19 S. E. 366. It 379 was evidently a "trade inquiry" sent out by the oil company to customers, and did not purport and was not intended to be a legal offer binding on acceptance. "Care should be taken always not to construe as an agreement letters which the parties intended only as preliminary negotiations": Lyman v. Robinson, 14 Allen (Mass.), 242.

Again, the acceptance by the plaintiff was not in the terms of the offer. The acceptance was for fifteen hundred barrels. The oil company could not have compelled the plaintiff to take a less number. If the plaintiff regarded the oil company's letter as a valid offer, it should have replied that it would take what barrels the oil company had, not exceeding fifteen hundred, as that company had offered no exact specific number. "An acceptance, to bind the other party, must be unconditional and unqualified, and must correspond exactly to the terms of the offer": 24 Am. & Eng. Ency. of Law, 1031, 1032, and cases cited; 1 Parsons on Contracts, 476, 477. As the plaintiff's message to the oil company seasonably delivered would not of itself have effected a legal contract between the plaintiff and the oil company for the delivery of fifteen hundred barrels at ninety-five cents each, it follows that any other than nominal damage would be purely speculative. The oil company might have delivered the barrels, and then again it might not have done so. It might have delivered fifteen hundred, and again it might have

delivered a much less number. Its letter specified no exact number, and it was under no legal compulsion to deliver any.

As the defendant manifests its willingness to pay nominal damages, it is unnecessary to consider the exceptions to his honor's rulings on the issue of negligence. We award a new trial upon the second issue relating to the damages. Partial new trial.

The Principal Case is supported by Moulton v. Kershaw, 59 Wis. 316, 48 Am. Rep. 516.

BOURNE v. SHERRILL.

[143 N. C. 381, 55 S. E. 799.]

CONTRACTS-Statute of Frauds-Collateral Agreement Consideration. If, at the time land is conveyed, as an inducement thereto and in part consideration for the sale and delivery of the deed, the grantee orally agrees that, if he does not build and resells the land, the grantor is to have the profits of such resale, such agreement is not without consideration, nor is it within the statute of frauds. (p. 810.)

Action to recover amount realized by defendant on his resale of property sold to him by plaintiff. Verdict and judg ment for plaintiff. Appeal by defendant.

L. Craig, for the plaintiff.

J. C. Martin, for the defendant.

382 HOKE, J. There was evidence of plaintiff tending to show that plaintiff sold and conveyed to defendant a lot in Asheville for which he had been offered a larger price by another, under assurance that defendant desired to build on the lot as a home for himself and wife.

That at the time the lot was conveyed to defendant, as an inducement thereto, and in part consideration for the sale and delivery of the deed, defendant then agreed that if defendant did not build, but resold the lot, that plaintiff was to have the profits realized on such resale.

That shortly after obtaining the title, the defendant resold the lot at a profit, and plaintiff instituted the present suit to recover the profits pursuant to the agreement.

Defendant objected to the introduction of any and all of this testimony and to any recovery predicated thereon, on

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