Many lumbermen take orders from their customers through traveling men or other representatives. Usually the orders are written down in a manifold book and often are signed by the buyer. The order is usually taken subject to confirmation by the house or home office. This acceptance or confirmation is customarily made by acknowledgement of the order in writing to the purchaser. The question in point is whether or not, if an agent has taken an order as above, can the purchaser cancel the order and his obligation to accept the lumber? In a case in this State a purchaser of merchandise placed the order with the traveling man and later wrote to the house cancelling the same, as he found he could buy similar goods for less money. The purchaser wrote before the seller had communicated any acceptance or intention to fill the order which had been given to the seller’s representative. Some correspondence ensued in which the seller refused to cancel the order and later shipped the goods to the purchaser, who refused to receive them. The action resulted in a judgment in favor of the seller, which was reversed on appeal, in which numerous authorities were cited by the Appellate Court holding substantially as follows—“An order or request in writing, addressed to a dealer or his agent to ship to the writer on or before a date named, goods of a kind specified, for which the writer agreed to pay a price named, does not constitute a contract until accepted or acted upon by the vendor and may be withdrawn at any time before acceptance.”

It is obvious that the result would be different were the vendor to have signified his acceptance of the order prior to the cancelling or withdrawal of same by the purchaser, as we would then have a valid contract, which could not be cancelled without mutual agreement.

In this connection it might be well to add that in business transacted by mail, the general rule is that the time of the mailing or depositing in the mail of a letter is the presumptive time of the communicating of the facts therein to the party to whom the letter is addressed, hence when an order is sent by mail, another letter withdrawing the order, if mailed prior to the mailing of the acceptance by the other party, is a complete cancellation of the order in the first letter. In other words, the law does not take into account the periods elapsing by reason of the means of communication but only the acts of the parties in so far as the time of such acts is considered to have taken place.

Opinion No. 96.