
    Jacob Blum, Respondent, v. Ambrose Daly, Appellant.
    (Supreme Court, Appellate Term,
    January, 1898)
    Goods sold—'An offer must be accepted.
    Where a vendee alleges that certain of a lot of skirts delivered to him were not those. selected' by his agent, but offers to buy those Which are satisfactory to him, and this offer is declined by the vendor, to whom the goods are subsequently returned, he cannot subsequently ' recover for those which the vendee offered to take, as an offer, not . accepted, is not binding upon either party to a contract. .
    Appeal by defendant from. a judgment of the Fifth District Court.
    D. A. Spellissy, for appellant.
    John Bogart, for respondent.
   McAdam, J.

The item of the plaintiff’s account litigated before the justice was that of March 9, 1897 — “ 16 skirts, $4.50 each, $72.”. These were selected by the defendant’s agent, Mr. Brennan. ■ When the skirts were received and examined at .the defendant’s "store Brennan insisted that they were not the .same goods he ordered. ■■■•'_

The evidence shows that the examination disclosed that ten of the skirts were- all-right, and six much inferior to-those-selected. ■ The defendant thereupon offered to return the six skirts,. and said he was willing" to buy the other ten because he liked them, but'the .plaintiff’s son, who managed his- fathér’s ■ business, 'declined" to assent to this, and said that the defendant must send back the whole lot if the goods were unsatisfactory. Acting upon this direction the defendant, some days afterwards; returned the sixteen skirts to the plaintiff.

The justice disallowed the charge for the objectionable six skirts, but gave judgment against the defendant for the other ten, on the theory that by offering to return six and proposing to purchase the other ten skirts he had elected to accept the latter, and in consequence became liable for their purchase price. To hold that the defendant had elected to do anything of the kind presupposes that the plaintiff Imd given him the option of determining whether he would accept ten or sixteen'of the skirts, when such an inference is directly contrary to the fact.

It is unnecessary for us to consider whether there was an acceptance of the entire sixteen skirts by the defendant, for the finding by the justice negatives that; and if the defendant was not bound to accept all he was under no obligation to accept any.

The defendant’s proposition to purchase and retain ten of the skirts was not an executed election on his part to accept the ten; it was at most a mere offer, not binding until accepted by the plaintiff. The rule is elementary that both parties must be bound or neither is bound; in other words, there must be mutuality of engagement. Clark on Cont. (Hornbook ed.) 168.

In order to constitute a contract it is essential that there should be a reciprocal assent to a certain and definite proposition. A mere offer not assented to constitutes no contract, for there must not only be a proposal, but an acceptance thereof. So long as a •proposal is not acceded to it is binding upon neither party, and may be retracted. Story on Cont., § 3/T8. The parties must assent to the same thing in the same sense, and the proposition must be met by an acceptance which corresponds with it entirely and adequately. 1 Pars. Cont. (6th ed.) 475, 476. There is no evidence that the plaintiff gave any assent to change the' contract as originally made; on the contrary he throughout treated the sale as entire and indivisible, and brought this action on that theory.

The justice could not of his own motion make an election for the plaintiff by splitting his indivisible demand without the consent of the parties interested, however equitable that course might seem.

If for any reason the defendant was entitled to return the property he was on the evidence bound to do as lie did ■— return all.

It follows that the judgment must be reversed and a new trial -ordered, with costs to the appellant to abide the event.

•Daly, P. J., and Bischoff, J., concur.

• • Judgment reversed arid new trial ordered, with costs to appellant sfo abide event.  