
    Edwin Epstein and Others, Composing the Firm of Epstein & Vollweiler, Respondents, v. Shepard & Morse Lumber Company, Appellant.
    First Department,
    February 8, 1907.
    Contract — facts raising the question as to whether sale was absolute or conditional.
    When in an action for the breach of a contract to sell and deliver lumber the case is tried upon the original oral contract and the defendant gives evidence that in maldng'the order slip, which was shown to the plaintiff at the time, the defendant’s agent wrote thereon “ if you can’t fill order this way, don’t ship it,” a question of fact arises as to whether the fulfillment of the original contract was conditional upon the defendant’s ability to fill the order or was absolute, and it is- error to withhold that question from the jury and to direct • an assessment of damages.
    Appeal by the defendant, the Shepard & Morse Lumber Com: pany, from a judgment of the Supreme Court in favor- of the plaintiffs, entered in the office of the cleric of the county of Hew York on the 22d day of May, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of May, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Williams, for the appellant.
    
      Maurice B. Blumenthal, for the respondents.
   Houghton, J.:

The plaintiffs are box manufacturers, and the defendant is engaged in the lumber business, with its principal office in the city of Boston, and maintains a sales department in the city of Hew York, under the management of one Kennedy, connected with which, as salesman, was one Courtney. The plaintiffs required a special kind of lumber in their business, and gave an order to defendant’s salesman for a quantity of inch and inch and a quarter eastern pine, not less than five inches in width and ten feet in length. The order was given verbally at plaintiffs’ place of business, the sales agent making a memorandum of it, which he submitted to the manager of defendant, and upon which a communication in the form of a sales slip was sent from defendant’s Mew York office to plaintiffs,, which specified the amount, size and price of the lumber winch was to be delivered to plaintiffs, with the additional memorandum that “ This must be good average width, nothing shorter than 10 ft.; * * * no hurry,” and with a further memorandum that there probably would be some shorter than ten feet, which, however, would be at a less price, and if not wanted would be taken back. This memorandum also specified that the shipment was to be made “ subject to the approval of our Boston office.”

The complaint simply alleges that the plaintiffs purchased a quantity of lumber, without specifying the kind or quantity, or whether the agreement was verbal or in writing, at an agreed price, which the defendant failed to deliver within a reasonable time, and asking damages for such breach. The answer is a, general denial.

On the trial, after the order had been introduced in evidence, and upon the defendant objecting to the plaintiffs’ proving that the agreement was that the lumber should be delivered before the close of canal navigation, the plaintiffs’ counsel announced that the contract relied upon by plaintiffs was a verbal one and made with the sales agent' at the time the order was given. The defendant’s counsel accepted this •position, and thereafter the case seems to have been tried without reliance upon the written order and agreement, but on the question as to what the oral agreement in fact was.

Both the witnesses for- the plaintiffs and the defendant seem to have been entirely fair in their testimony and the whole controversy appears to have arisen from the fact that some one made a mistake and failed to transmit to the Boston office of defendant an order reading like the one'sent to the. plaintiffs. The order transmitted to the Boston office was the same as that transmitted to the plaintiffs, except that there was written on it these words: “ If you can’t fill order this way don’t ship it.”

The theory of the plaintiffs upon the trial was that this■ addition not being on the sales slip which defendant forwarded to them, there was a binding agreement on the part of the defendant to fill the order, and it was assumed by the' trial court that the oral evideuce upon which plaintiffs announced that they relied for their contract in no way contradicted this. In that respect the learned trial court • fell into error, for Courtney, the sales agent, testified that when the order was given at plaintiffs’ place of business one of the plaintiffs said to him that the lumber must average a better run of width and length than the cargo they had just bought or they would not accept it, and that he replied “ that makes a difference,” and then put on his memorandum of the order the following: “ Must be better average run of widths and lengths or else don’t ship,” and handed this memorandum so written to one of the plaintiffs to read over, and that the memorandum embodied the conversation then had on that subject. This testimony was not substantially contradicted, and Vollweiler, with whom it was claimed to have been had, was not produced as a witness.

Aside from the question as to whether or not the order was contingent upon approval by the Boston office, if the agreement to sell was, in fact, conditioned upon the defendant’s ability to fill the order in the manner specified, then manifestly it was not an absolute contract and was not an agreement to fill the order at all events. This evidence of Courtney’s at least raised an issue as to what the contract really was. If the contract was an unconditional acceptance of plaintiffs’ order and an agreement to fulfill, and was not subject to approval by the Boston office, then the defendant would be liable. On the other hand, if the conversation proved only a conditional order- and the defendants were not to ship if they could not furnish as specified, then a further acceptance was required- on the' part of defendant before it could be made to respond in damages for failure to filLthe order. The evidence, therefore, presented a question of fact for the jury to determine what the contract actually was, and the court erred in refusing the defendant’s request to submit that question to them, and in directing-that they only assess plaintiffs’ damages, as was done.

It is urged that the letter of defendant of December fifth shows an acceptance of the order and a recognition of its binding effect. Under the circumstances disclosed, that letter may be interpreted,, not necessarily as an absolute recognition of the order, but as an indication of an endeavor to fill the order if possible, and a desire to. do so if the defendant were able.

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson, P. J., McLaughlin, Scott and Lambert, JJ.j concurred.

Judgment and order reversed, new trial ordered, costs "to appellant to abide event. Order filed.  