
    Myers et al. v. Trescott.
    
      (Supreme Court, General Term, First Department.
    
    January 13, 1891.)
    Contract of Sale—Acceptance.
    To an offer in writing by defendant to sell certain goods to plaintiffs, they replied by a letter accepting'the terms proposed, but added that they did so on the presumption that the goods were of prime quality, and of a certain weight, and requested that a sample be sent, and "they would then give shipping directions. Held, that there was no binding contract, and that none was created, umrer the statute of frauds, by subsequent conversations in regard to the matter, or by other letters of plaintiffs, with whose terms defendant refused to comply.
    Exceptions from trial term.
    • Action by Elijah Meyers and J. Harby Moses against Benjamin F. Trescott for breach of a contract for sale of merchandise. A verdict for plaintiffs was directed by the court, and defendant’s exceptions were ordered to be beard in the first instance at general term.
    Argued before Van Brunt, P. J„ and Brady and Daniels, JJ.
    
      T. Henry Dewey, for plaintiffs. George Bowen, (James G. Foley, of counsel,) for defendant.
   Daniels, J.

A verdict in the action was directed by the court in favor of the plaintiffs for the sum of $182.54 as damages for the breach of a contract for the sale of what were called “chops.” The article alleged to be sold was dried apples, packed, and understood in the trade as “chops.” On the 22d of January, 1888, the defendant wrote to the plaintiffs:.

E. Myers & Co., New York—Gents: Ifyou can use my entire lot of chops at 2 3-4 c., I will let you have them. I" have between 65,000 and 66,000 2 3-4, F. O. B. New York, lighterage free, or one car-load at 2 7-8, N. Y. If you want them, let me know promptly. They are packed heavy in barrels, having used a 1 Sampson jack ’ to pack them. Of uniform quality in every respect.

“Yours, etc., b” F. Trescott.”

And they replied to this.letter on the 24th of the same month as follows:

“New York, Jan. 24th, 1888.

“Mr. B. F. Trescott, Pavilion, N. Y.—Dear Sir: Your favor of 22d just to hand, and we have concluded to accept your offer of all your chops, between 65,000 and 66,000 pounds, A. 2 3-4 c., delivered lighterage free, New York. We do this, of course, on the presumption that the goods are of ‘ prime ’ quality, and run 200 pounds net, or more, per barrel. Please send us sample at once, and we will then give you shipping directions.

“Yours, truly, E. Myers & Co.”

■ And the controlling question in the case is whether this was such an acceptance of the defendant’s offer as resulted in the making of a contract. The offer was direct and explicit, and so was the first paragraph of the plaintiffs’ reply; and, if the correspondence had ended there, a legal contract between the parties would have been made. But it did not, for the plaintiffs then proceeded to add a statement by way of qualification of their acceptance; and that was that the goods were of prime quality, and ran 200 pounds net, or more, to the barrel, and requested a sample to be sent at once, when the plaintiffs would give the defendant shipping directions. This was in the nature of conditions added, rendering the preceding explicit acceptance dependent upon the facts that the apples were of prime quality, and ran 200 pounds, or more, to the barrel, and that the quality should be further assured by a sample at once sent to the plaintiffs. These qualifications left the transaction open in such a manner that if the plaintiffs did not find the apples either to be of prime quality, or to run 200 pounds net, or more, to the barrel, they would be at liberty to refuse to receive them; and it made the acceptance to depend upon facts not contained in the defendant’s proposals of sale. To create a binding contract by way of correspondence, the law requires the offer to be accepted by the party to whom it may be made as it shall be contained in the offer itself. If that is not done, then the minds of the parties do not meet upon the terms contained in the offer, and no contract of a binding nature is brought into existence. Upon this subject it was said in Eliason v. Henshaw, 4 Wheat. 225, “ that an offer or bargain by one person to another imposes no obligation upon the former until it is accepted by the latter according to the terms in which the offer was made. Any qualification of or departure from those terms invalidates the offer, unless the same be agreed to by the person who made it. Until the terms of the agreement have received the assent of both parties, the negotiation is open, and imposes no obligation upon either.” Id. 228. And this principle was followed in Carr v. Duval, 14 Pet. 77, 83, and in Mactier v. Frith, 6 Wend. 103; Mayer v. McCreery, 9 N. Y. St. Rep. 114; affirmed, 119 N. Y. 434, 23 N. E. Rep. 1045; Potts v. Whitehead, 23 N. J. Eq. 512; Lyman v. Robinson, 14 Allen, 242, 254; Corcoran v. White, 117 Ill. 118, 7 N. E. Rep. 525; Sievewright v. Archibald, 17 Q. B. 103; and Carter v. Bingham, 32 U. C. Q. B. 615. The plaintiffs wrote again to the defendant on the 30th of January, 1888, giving directions for the shipment of the apples. But these directions he declined to comply with; staling to them, in a letter of the 1st of February, that their reply of the 24th of January had not been received until the 28th, when he found a telegram from other parties awaiting him offering a higher price for the apples, which he immediately accepted. A further letter was written by the plaintiffs to the defendant on the 9th of February; but neither this letter, nor the oral evidence given in the case, made any change in the least degree beneficial to the plaintiffs. For the contract, to be binding upon the defendant, was required by the statute of frauds to be in writing; and, as long as the proposal made by him was not unqualifiedly accepted by the plaintiffs, no such contract was created, and the defects in the correspondence could not be removed or corrected by any conversation to which the defendant wras a party, or letters afterwards written to him, with whose terms he declined to comply. The plaintiffs, accordingly, were not entitled to recover under the evidence as it vras produced in the action, and the verdict should be set aside, and a new trial ordered, with costs to the defendant to abide the event.' All concur.  