
    John Fraser, Resp’t, v. John H. Small, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    Contract—Sale.
    After negotiations by letter and telegram, plaintiff, by telegram, accepted an offer of sale of ice, and ordered a shipment, saying he would see defendant the following Monday. Defendant ordered a cargo and requested a certified check therefor. Upon meeting to execute a contract for such sale, plaintiff disputed some of its terms, and defendant after endeavoring to explain them, remarked that as he did not understand it, they would call the trade off, to which plaintiff assented, but two hours later served a notice demanding delivery of the ice. Held, that the minds /of the parties never met as to the terms of the sale, and therefore there was no contract.
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    Action for breach of a contract of sale.
    
      David J. Newland, for app’lt; Tompkins & Bannister, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered on a verdict of a jury. The complaint alleges a contract for the sale of ice to plaintiff and a refusal to deliver.

To prove the contract the plaintiff submits the following papers. A letter, dated July 11,1890, stating, “ Will you be kind enough to tell me by return mail your latest cost price, delivered here, for 200 or 250 tons of ice, and oblige.”

A telegram from Small to Frazer, dated July 12, stating: “ If ordered to-day, five twenty-five at dock, delivered now or later,”

A telegram from Frazer to Small, dated July 12, stating: “ I accept your offer. Deliver 200 tons in one week or later. Will see you Monday.”

A letter from Small to Frazer, dated July 12, stating: “ It was - lucky for you that you wired acceptance of my offer. The . asking price is to-night seven dollars per ton in-take weight, bill of lading.

^ “I have ordered a cargo for you. To make it secure, you **. had better send me a certified check for $500, which I will hold in my bank, Seventh National, N. Y.”

The appellant, in his answer, alleges a custom of buying and selling ice by the cargo, making the price per ton upon the “ intake ” weight in Maine, as shown by the bill of lading, or weigh-er’s certificate, and that his offer of $5.25 per ton to Fraser was based on “ in-take ” weight.

And appellant testified that he was engaged as a broker in selling ice on commission, and that on Tuesday, July 15th, after the letter of July 12th, defendant came to his office and selected a cargo of ice of about 200 tons in a vessel named the Lottie A. Walford, and that they then sat down to make out the contract, and that he, defendant, drew it up and read it over to plaintiff twice.

Defendant introduced in evidence the proposed contract, which is as follows:

“Maine Ice, Wholesale; Vessels for Ice and Coal.”
“ J. Henry Small, )
“ 24 Cortland St., N. Y, l
“New York, July 15,1890. )
“John Fraser, of Nyack, N. Y., agrees to purchase, and J. H. Small, agent, agrees to sell one cargo of ice, of about 200 tons, more or less; said ice to be merchantable ice, to be delivered at dock at Nyack, N. Y., or as near as water will permit, free of expense to said purchaser. Ice to be paid for on B. L. in-take weight in Maine. Ice and freight to be $5.25 per ton for ice and freight at dock at Nyack, N. Y. On receipt of B. L. said Fraser to pay for the ice. Freight to be paid to the captain when discharged.”

Defendant further testified that when Fraser came to the “ intake weight,” he made objections to that, and said: “This ice is to be weighed out to me, and put into my building weighed over the scales at Nyack.”

Defendant undertook to explain to him “in-take weight,” “F. O. B.,” and the way ice was sold, and finally said to him: “ As long as you do not understand this, we will call the trade off; ” he said: “Very well; we will call the trade off; ” and he shook hands and went out.

Defendant’s clerk testified to the same facts of the drawing up of the contract, of the misunderstanding as to “in-take weight,” and Fraser’s assent to call the trade off; and of Small’s reading the paper in Fraser’s hearing.

Plaintiff nowhere denies this testimony of the agreement to call the trade off; but introduces in evidence a paper notifying defendant that he shall require delivery of the ice, and on failure shall hold defendant for damages.

It is admitted that he served this paper (though dated the 14th) on defendant the same day, about two hours after he went out from the 'first interview.

Much testimony was given as to the general custom of selling ice on the “in-take weight,” the weight at the place of loading on bill of lading, and the signification of the letters “ F. O. B.,” free on board.

I think it is plain from the foregoing that the minds of the parties never met upon the terms for a sale of ice.

There is no evidence to dispute the fact that when the defendant sent the despatches and letter, he meant a sale of ice according to the custom of the business at “in-take weight.”

The plaintiff undoubtedly understood, or may have understood, he was to have it weighed out at the place of delivery.

The first telegram states the place of delivery at the dock, which -shows defendant intended to deliver by a vessel.

The same day the defendant writes a letter, which was called for by plaintiff’s first communication, and which must be regarded as a part of the negotiation, in which he refers to the asking price for ice as seven dollars per ton “in-take weight,” “bill of lading,” and in the margin of which were the words and figures, $5.25, F. O. B., plainly meaning the price and terms of the sale he proposed to make, and stating further that he had ordered a cargó for the plaintiff.

This letter should have apprised the plaintiff that the defendant intended to sell a cargo of ice as the letter indicated to those in the trade, to wit, a cargo of ice by weight as loaded.

It is doubtful if plaintiff believed the contract was complete, as he states in his telegram accepting the offer “ will see you on Monday,” showing that he deemed it necessary to arrange for some details or to make or receive some explanations.

That the defendant did not regard the contract closed is evidenced by the fact that he made out a written contract in due form which he asked the plaintiff to sign.

If, however, the telegram and letter of defendant dated the 12th of July can be regarded as constituting a contract, the plaintiff is not in any better position, as the letter plainly implies a contract according to the custom of the trade, i e., at $5.25 F. O. B. “ in-take weight,” as the only one defendant proposes to make.

We think that .upon all the circumstances of the case there was a failure on the part of the plaintiff to prove the contract set out in the complaint, and that a verdict should have been directed for the defendant.

Judgment reversed, new trial ordered, costs to abide event.

Barnard, P. J., and Dykman, J., concur.  