
    John Batt & Company, Ltd., Respondent, v. Ellis P. Earle, Appellant.
    First Department,
    November 6, 1914.
    Contract — sale of ore — right of purchaser to reject ore which fails to meet specifications.
    Under a contract for the sale of a large quantity of antimony ore, providing that the purchaser should have the right to reject the ore if it did not assay fifty per cent after arrival in New York, the right to reject affords the purchaser an exclusive remedy in case the ore falls below fifty per cent, and no damages can be legally recovered.
    Appeal by the defendant, Ellis P. Earle, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 26th day of September, 1913, setting aside the verdict of a jury in plaintiff’s favor for the sum of $100 on the ground of insufficiency of damages.
    
      Richard T. Greene, for the appellant.
    
      Homer L. Loomis, for the respondent.
   Scott, J.:

The action is for damages for the non-fulfillment by defendant of a contract for the sale to plaintiff of 100 tons of antimony ore. There is no dispute as to the making of the contract, which was effected wholly by cable and correspondence. There is a serious question, however, as to its interpretation. Antimony ore is a somewhat rare commodity. Its history appears to be that it has been found for a few years in one country, and then for a few" years in another but rarely in large quantities. In the year 1906, when the contract in litigation was made, and at the time of the trial, the principal sources of supply were Mexico and China, very little being found in the United States. On January 2, 1906, defendant, who is a dealer in metals in the city of New York, wrote to plaintiff, a metal dealer in England, that he had friends in the west who were producing 100 tons per month of orécontaining from fifty to sixty per cent of metallic antimony, and asking a price on 100 tons monthly. It is quite apparent and, as we think, of some importance in construing the subsequent contract between the parties, that that contract was made with reference to the particular output of ore referred to by defendant in his letter of January 2, 1906. ' In other words, what defendant was offering to sell, and what plaintiff must have understood him to be offering to sell, was the antimony being produced by the friends referred to in the letter. On February 10, 1906, plaintiff replied by cable, making a tentative offer and asking for a firm offer from defendant. On the same day the defendant complied and made a firm offer as follows: “ 100 tons antimony shipment during March. We make you the following offer, good for immediate answer by telegraph. One hundred dollars on the basis of 50%. Shippers not to be held responsible for delay caused by railroad. You have the right to reject if it does not assay 50%, after arrival New York.”

On February 12, 1906, plaintiff answered by cable: “Accept your offer 100 tons 50%, minimum 100 dollars ton of 2240 lbs will be conditional upon — requires the option to cancel — if not shipped March. Make further offer.”

It will be observed, and it is so conceded, that this latter cablegram was not strictly speaking an acceptance of defendant’s offer so as to make a firm contract, because it was not .made “immediately” and did not purport to be an unconditional acceptance, containing some stipulations not found in defendant’s offer. These new conditions were that the ore shipped should be “50%, minimum” instead of being sold on “the basis of 50%; ” that the tons should be long tons of 2,240 pounds, and provided for a cancellation if shipment was not made in March. The effect of the counter proposition, which began with the words “accept your offer,” was that plaintiff accepted defendant’s offer, if modified by the new conditions imposed by plaintiff, thus leaving accepted and unmodified the provision in defendant’s offer “you have the right to reject if it does not assay 50% after arrival New York.” On February 17, 1906, defendant, after repeated cables from plaintiff asking for an answer, replied by cable: “We hereby confirm subject to the conditions named.” The plaintiff’s claim is, and with this view we agree, that this latter cable concluded the contract upon the terms stated by defendant, as modified or added to by plaintiff’s cable of February twelfth.

The agreement thus concluded was that defendant sold and plaintiff bought 100 tons of antimony ore of fifty per cent minimum on the basis of $100 per ton of 2,240 pounds, to be shipped during March, plaintiff having the right to cancel if not shipped in March, and to have the right to reject if it did not assay fifty per cent after arrival in New York.

The antimony ore mentioned in defendant’s letter of January second, and which was the subject of the contract of sale, proved when it arrived in New York to be much less rich than expected, assaying only about twenty-four per cent. No fifty per cent ore was received, and of course none could be or was shipped under the contract with which we are now concerned. The less rich ore was subsequently sold to plaintiff under another contract at a much lower price. The plaintiff’s' contention is that defendant agreed at all events to sell and ship 100 tons of ore of the minimum richness of fifty per cent, and having failed to do this, is hable for damages for his default. This was the view taken by the jury to whom the court left the construction of the contract. The defendant on the other hand contends that the sale was upon conditions, one of which was that if the ore on arrival in New York did not assay fifty per cent the plaintiff might reject it, and that this stipulated right to reject afforded to the purchaser the exclusive remedy in case the ore fell below fifty per cent. With this latter contention we agree. As has already been noted, the parties were dealing with respect to a particular lot of ore which it was expected would assay up to fifty per cent, although in the nature of things its actual richness in antimony could not be ascertained until its arrival and assay in New York. This was the construction put upon the contract by an expert witness called by plaintiff whose testimony on this point was given without objection, and it was also the construction adopted by defendant in a letter to plaintiff, which was duly answered by plaintiff in a letter which took no exception to defendant’s expressed understanding of the meaning of the contract.

There was consequently no question of damages to be submitted to the jury. No damages being legally recoverable it follows that even the small sum awarded as damages to plaintiff cannot be said to be inadequate; although it may be said in passing that if we felt called upon to consider the question of damages it would be difficult to find warrant in the evidence for any greater amount than that given by the jury.

The manner in which this appeal comes to us being only from the order setting aside the verdict, leaves nothing to be considered except the propriety of that order. For the reasons stated we think that it was erroneous. It must, therefore, be reversed and judgment directed for the plaintiff upon the verdict, with costs and disbursements of the appeal to the defendant, appellant.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment reversed and judgment directed for plaintiff on verdict, with costs to appellant. Order to be settled on notice.  