Ammons v. Wilson & Company

Supreme Court of Mississippi · 1936 · Contracts

170 So. 227 (Miss. 1936)

Updated July 26, 2026

ContractsOffer and AcceptanceAcceptance by Silenceofferacceptancesilenceimplied acceptanceprior dealings

Facts

The buyer, a wholesale grocer, was 'booked' by the seller's traveling salesman for up to 60,000 pounds of shortening at a stated price, but the evidence showed this booking was only tentative and bound neither party. On August 23 and 24, 1934, the buyer submitted written orders through the salesman for 942 cases of shortening, and each order stated that it was subject to acceptance by the seller's authorized agent at the point of shipment. The salesman had authority only to solicit and transmit orders, not to bind the seller. In prior dealings over six or eight months, the seller had accepted and shipped the buyer's orders within a week, but here the seller remained silent for twelve days before declining the orders, after the market price had risen.

Issue

Can a seller's silence and twelve-day delay in rejecting written orders that were expressly subject to acceptance constitute an implied acceptance because of the parties' prior course of dealing? More specifically, was there enough evidence to let a jury decide whether the seller's silence manifested assent?

Rule

When an offeree fails to reply to an offer, silence and inaction operate as acceptance only where, because of previous dealings or otherwise, the offeree has given the offeror reason to understand that silence or inaction is intended as a manifestation of assent, and the offeror so understands. Even when an order is expressly subject to the seller's acceptance and a traveling salesman lacks authority to bind the seller, prior dealings may make delayed silence sufficient to create a jury question on implied acceptance.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Marta Ruiz runs a restaurant supply store in Albuquerque, New Mexico. For the last nine months, she has placed written orders for cooking oil with Prairie Mesa Foods through its traveling salesperson, Noah Benton; every prior order form said it was subject to approval at Prairie Mesa's warehouse in Tulsa, and every prior order was shipped within six days without any separate notice. Marta submits another written order on the same form, hears nothing for eleven days, and then receives a rejection after oil prices have risen sharply.

If Marta sues claiming Prairie Mesa accepted by silence, which is the best statement?

Explanation. The majority rule is that silence and inaction operate as acceptance only where prior dealings or other circumstances give the offeror reason to understand that silence manifests assent, and the offeror actually so understands. Here, the written order is only an offer because it is expressly subject to approval, and the salesperson cannot bind the seller. But the repeated history of shipment within six days makes an eleven-day silence followed by rejection sufficient to create a jury question on implied acceptance.