## Facts

- A Memphis grocery wholesaler, through a traveling salesman, solicited and obtained a written order from a country-store proprietor for goods including 50 barrels of meal.
- The order stated it was “not binding” until accepted at the seller’s Memphis office; the salesman lacked authority to bind either party; and the order was not subject to countermand by the buyer.
- The order required the meal to be “ordered out” by a stated date, with storage charges thereafter.
- After the order was placed, the buyer received no acceptance or rejection notice for about two months.
- During the period of silence, the salesman visited the buyer about weekly but neither mentioned the order.
- When the buyer went to the seller’s office and requested shipment, the seller stated it had never accepted the order and that no contract existed.
- Over the same period, the market price of meal and other ordered items rose substantially.
- The buyer sued for damages based on the seller’s refusal to deliver at the contract price; the trial court awarded damages, and the intermediate appellate court affirmed.

## Issues

1. Whether a seller’s prolonged silence and failure to notify the buyer of rejection within a reasonable time can operate as an acceptance of a solicited purchase order.
2. Whether the nature of the goods (perishable or rapidly price-fluctuating) and an order that the buyer cannot revoke impose a duty on the seller to accept or reject within a reasonable time.
3. Whether evidence of other merchants’ practices established a trade custom that prevented treating delay as acceptance.

## Decision

- The Supreme Court of Tennessee denied the seller’s writ of error, leaving in place the judgment for the buyer.
- The court held that, under the circumstances, the seller’s unreasonable delay in communicating non-acceptance constituted acceptance, completing a binding contract.
- The court rejected the claim that a relevant trade custom controlled, finding the proof insufficient to establish a binding custom.

## Legal Principles

- Silence ordinarily does not constitute acceptance, but exceptions may arise from the transaction’s context and the parties’ conduct.
- When a seller solicits an order for goods with rapidly changing value and the buyer is bound not to revoke, the seller must accept or reject within a reasonable time.
- An unreasonable delay in communicating rejection, where the seller has ready opportunities to notify the buyer, may be treated as acceptance to prevent the seller from holding a one-sided option based on market movement.
- What is a “reasonable time” depends on the subject matter, market conditions, and the contract terms indicating time sensitivity.

## Conclusion

The court treated the seller’s extended, unexplained delay in rejecting a solicited, non-revocable order for price-sensitive goods as an acceptance, forming a binding contract and supporting damages for non-delivery at the agreed price.


Cole-McIntyre-Norfleet Co. v. Holloway, 214 S.W. 817 (Tenn. 1919)