
    August Marschall et al., Respondents, v. The Eisen Vineyard Co., Appellant.
    (New York Common Pleas—General Term,
    April, 1894.)
    An absolute acceptance of an offer in its exact terms is indispensable to the formation of a contract.
    Appeal from judgment of the .General Term, City Court, affirming judgment on verdict.
    The opinion states the case.
    
      Douglass dk Minton (John B. Adger Mulladly, of counsel), for appellant.
    
      Gibson PutBel, for respondents.
   Pryor, J.

The action is for damages for breach of an executory contract to sell a car load of sherry. The answer denies the contract, and whether there was a valid contract is the question .for decision.

To the validity of the contract a memorandum of its terms was requisite under the Statute of Frauds; and such memorandum the plaintiffs contend is furnished by the following series of telegrams between the parties : On June twenty-seventh the plaintiffs, in New York, wired the defendant, in San Francisco, “ Will you ship us one or two car loads of sherry % ” On June twenty-eighth the defendant answered, “ Can furnish one, perhaps two cars of sherry, at iifty-two and a half cents per gallon, including cooperage, against thirty days’ acceptance ; ” to which, on June twenty-ninth, plaintiffs replied, “ At prices quoted, former terms, yon can ship two cars by Sunset route.” On June thirtieth defendant wired, “ Price is net 52£ cts., without any rebate ; if you understand it that way answer.” On July first plaintiffs replied, “ If you cannot do better will accept your terms and price; ship Sunset, one dollar rate.” Finally, on July fifth, defendant telegraphed, “ Cannot accept your order for sherry, parties holding refusal of sherry before arrival of your order have taken it.”

It is elemental’}- law that to the constitution of a contract the consent of the parties is indispensable, and the consent must be to the same thing at the same time, comemus ad idem. Broom Com. L. 252; Bish. Cont. § 313; Pollock Cont. 400. So that “ a mere offer or promise, not accepted, involves no concurrence of wills and it can never constitute a contract.” Bish. Cont. § 321. And, “though there is an acceptance, if it is not to the exact thing offered, or if it is accompanied by any conditions or reservations, however slight, in time or otherwise, no contract is made. It is so, for example, where new terms are introduced; they constitute an offer on the other side and leave the question open.” Bish. Cont. § 323.

These fundamental principles in the formation of contracts suffice to determine whether an obligatory engagement between the parties to the action was consummated by the above correspondence.

The direction as to the mode of shipment may be laid out of view as not an element of the supposed contract.

Manifestly, an obscurity lurks in the words “ former terms ” in the telegram of June twenty-eighth. What terms? Clearly, the parties had in mind previous conditions in bargains between them; and these “ former terms ” nowhere appear in the correspondence. The telegram of the twenty-seventh reciting the quantity of sherry to be sold, tlie price and the time and method of payment, embodies all the essential stipulations of a contract of sale. And yet in purporting to accept t e offer the plaintiffs interpolate’ the further condition that their acceptance is dependent also on “ former terms.” What those terms may be is not indicated by the defendant’s reply, which merely restates the price by a more explicit expression nor by plaintiffs’ response, which accepts “ terms and price.”

Nor, again, is it possible to collect from the correspondence whether the sale was of one or two car loads of sherry. The plaintiffs’ offer was to buy one or two car loads. The defendant’s offer was to sell one, perhaps two car loads. The correspondence fails to disclose that the parties finally agreed on the sale of one car load — the contract on which the judgment was recovered.

The fact that the complaint contains a count for two carloads of sherry as well as for one is a concession that even yet the plaintiffs have' not definitely accepted either alternative of the offer.

Again, in the telegram by which the plaintiffs claim that they closed and consummated the contract they say: “ If you c nnot do better will accept your terms and price.” Not in the definition of lexicographers only, but in popular apprehension as well, “ if ” is a word which introduces a conditional clause; supposing; provided.” Stofmonth; the Century Dictionary and all others. Plainly, a promise by one to another if the other will do a certain thing is not absolute, but conditioned that the other do the thing. In saying if you cannot do better I will accept your offer, the plaintiffs referred the matter back to the defendant for reconsideration, suspending meanwhile their acceptance of the offer. The construction would be different had the plaintiffs said, “ As you will not do better I accept your offer.”

At this point the defendant withdrew the oiler, and hence no agreement was perfected between the parties.

A reversal of the judgment is the necessary consequence.

Daly, Oh. J., and Bischoff, J., concur.

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