
    Edgar F. Kirwan et al., Appellants, v. Edward F. Byrne, Respondent.
    (New York Common Pleas — General Term,
    June, 1894.)
    To constitute a binding contract by correspondence there must be an unconditional offer and an unconditional acceptance of such offer.
    Where the negotiations were carried on by one who wasln fact an agent for others, the acceptance by the other parties to the negotiation of a written contract in the name of his principals is a waiver of any right to hold him as principal.
    Although there has been an unconditional offer and acceptance, thereby constituting a valid contract, evidence that one of the parties changed the terms of the written contract when submitted to him, and that the other party refused to accede to such change, is sufficient to show that the minds of the parties never met, and that no contract existed.
    Appeal by plaintiff from an order of the General Term of the City Court, reversing a judgment entered on a verdict directed by the court, and directing a new trial.
    
      William H. Shepard and Evarts L. Prentiss, for appellants;
    
      Thomas C. E. Ecclesine, for respondent.
   Bookstaver, J.

This action is for damages for breach ■of contract to sell and deliver 1,500 boxes of coke tin. Defendant made the following offer to plaintiffs, he having ■dealt with them as broker for five or six years:

“ From Edwabd F. Bybne, Metal Broker, 54 Cliff street.

“ To Messrs. Kibwan & Tyleb, Baltimore:

“New Yobk, lQth May, 1891.
“ Gentlemen — I can offer you, subject to prior sale, fifteen hundred boxes i. c. 14x20 Bessemer Steel Coke Tin for June delivery at Locust Point, at $4.95 cash on delivery. This is a very low price, but having offered them to other parties and having only a limited quantity to sell, I can only offer them to you subject to prior sale.
“ Yours very resply.
“ Edward F. Byrne.”

On May eighteenth plaintiffs telegraphed :

“Mr. E. F. Byrne:
“We accept your offer 16th, if full weight plates.
“ Eirwan & Tyler.”

On the same day defendant sent the following reply to this telegram by letter:

“ Gentlemen— Your telegram of even date at hand accepting my offer of 16th for fifteen hundred boxes 14x20, standard weight Bessemer Steels, and beg to inclose accepted contract for same, and would ask you to accept the copy and return.”

The contract referred to was as follows :

“Messrs. Joseph Byrne & Son:
“ Dear Sirs — I have this day sold for your account to Messrs. Eirwan & Tyler, fifteen hundred boxes i. c. 14x20 Bessemer Steel Coke Tin Plates, standard weight, for June delivery on dock at Locust Point, Md., at four dollars and ninety-five cents per box. Cash on delivery of order.
“ Yours respectfully.
“ E. F. Byrne.

Plaintiffs struck out the words “delivery of order” and inserted “receipt of plates,” and returned the contract to defendant in a letter of May nineteenth, stating “We have made a slight alteration in the one we have signed and would like to have Messrs. Byrne & Son change theirs to correspond,” and offering to accept a three-day draft for three-quarters of invoice, “ if any accommodation to your sellers,” and to send a check for the balance after an examination of the goods.

Defendant then wrote, under date of May twentieth, that Messrs. Byrne & Son would not agree to the terms inserted in the contract and had canceled the order.

Plaintiffs sue to recover the difference between the contract price and the market price of coke tin in June, 1891, which was admitted to be thirty cents per box.

The trial justice directed a verdict for plaintiffs, and the General Term of the Oity Court reversed the judgment and ordered a new trial. This appeal is from that order.

Where there is substantially no dispute as to the facts, the construction of a contract is for the court. Groat v. Gile, 51 N. Y. 431. This is true of contracts by correspondence. Turner v. Yates, 16 How. (U. S.) 14, 23. The correspondence must be attentively examined in order to ascertain whether the minds of the parties met, i. e., whether there was an unconditional offer by defendant and acceptance by plaintiffs at any time in view of the light of the surrounding circumstances. Thus viewed, defendant’s first letter appears to have been nothing more than a business circular and was treated as such by both parties. The circular said, “ I can offer.” It was a mere notice to plaintiffs. That they looked upon it as such, and not as a binding offer, is shown by their acceptance of the contract forwarded to them by defendant without objecting to the fact then appearing that the defendant Ayas a mere agent, and by the further negotiations between the parties. Plaintiffs’ acceptance was' conditional. Yassar r.

Camp, 11 N. Y. 441; Myers v. Treseott, 59 Hun, 395 ; 13 N. Y. Supp. 54, and cases cited; Corcorcon v. White, 117 Ill. 118.

Defendant’s reply acknowledged the receipt of the order and inclosed a contract for plaintiffs to accept. Plaintiffs’ acceptance thereof was a waiver of any right they might have had to hold defendant as principal, and as they changed the terms of the contract, defendant or his principal, not agreeing thereto, were at liberty to discontinue the negotiations.

We think the reversal must be sustained on still another ground. If the offer and acceptance were unconditional, thereby constituting a valid contract, evidence that a written contract when submitted by defendant had been changed by plaintiffs, which change defendant refused to accede to, was sufficient to show that the minds of the parties had never met, and that no contract existed. Frazer v. Small, 13 N. Y. Supp. 468; Bristol, etc., Aerated Bread Co. v. Maggs, L. R., 44 Ch. Div. 616.

The order of the General Term must, therefore, be affirmed and judgment absolute rendered for the defendant, with costs of this appeal and in the court below.

Bischoff and Pryor, JJ., concur.

Order affirmed and judgment absolute rendered for defendant, with costs.  