
    Bernard Wilentshik, Respondent, v. Arnold C. Messler, Appellant.
    (Supreme Court, Appellate Term,
    October, 1905.)
    Offer and acceptance — Necessity for acceptance.
    An order for goods, accompanied by conditions, is not a valid and enforceable contract until assented to by the seller.
    Evidence in an action for failure to deliver 100,000 rings, as per sample, at an agreed price, considered, and held that, as plaintiff had failed to show a valid and binding contract, a judgment in his favor should be reversed and a new trial ordered.
    Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, second district, borough of the Bronx.
    George W. Galinger, for appellant.
    Mark Goldberg, for respondent.
   Scott, J.:

The plaintiff’s claim in this action is set forth in a bill of particulars as follows: On or about the 24th day of March, 1905, the defendant and one, Joseph. F. Polard, plaintiff’s assignor, entered into an agreement whereby the defendant promised and agreed to deliver to the said Joseph F. Polard one hundred thousand rings as per sample, at a price agreed upon between them. That the defendant failed to comply with the said agreement and to deliver the said rings or any part of them. That the plaintiff’s assignor was therefore compelled to purchase rings at a higher price. That the price agreed upon between the de-, fendant and the said Joseph F. Polard was five and 50/100 dollars per gross, and that the market price of the said rings and which the said Joseph F. Polard was obliged to pay was twelve dollars per gross. That this action is brought by this plaintiff as assignee of the said Joseph F. Polard for the damage so sustained by the said Joseph F. Polard by reason of the failure of the defendant to deliver the said rings.” The plaintiff recovered a judgment for five hundred dollars. The disputed question of fact in the case was whether the defendant agreed to make arid deliver rings exactly like the sample one offered and received in evidence, which was what is known as “ rolled gold,” or whether the defendant was to deliver rings similar to the sample one except that they were to be electro plated.” From a careful examination of all the testimony given, I am of the opinion that the plaintiff failed to sustain the burden of proof cast upon him of showing that the rings to be made for his assignor were to be “ rolled gold.” It appears that Polard, the plaintiff’s assignor, and Heiter, a salesman of the defendant, had a conversation, prior to March twenty-fourth, regarding the price at which the defendant would furnish 100,000 rings to Polard similar in quality to a sample shown. Heiter testifies that, upon February 2'6, 1905, he showed Polard a letter, which is in evidence from the defendant, stating, in substance, that rolled gold rings would cost eight dollars and twelve cents per gross in lots of 100,000. Polard declined to order at that price and wanted something cheaper. That, thereupon, he (Heiter) submitted the sample ring to the defendant and received a letter from him dated March seventh, stating that rings like sample but “ electro plated ” would be furnished at five dollars and fifty cents per gross. This letter, also in evidence, to Heiter, was shown to Polard, who, subsequently, under date of March 24, 1905, signed a written order and mailed it to the defendant for 100,000 rings, quality to be the same as sample ring.” The sample ring was tagged and sealed and upon the tag were the words, sample of quality and ring ordered by J. F. Polard.” There also appeared thereon the words: The A. C. Messier Co., per - Heiter.” This order contains no reference to electro plated ” rings and but for this order there would apparently be no controversy. Polard, while admitting that the defendant’s salesman, when the sample ring was first submitted to him, stated that those kind of rings would cost about eight dollars and fifty cents per gross, contends that the only price subsequently fixed was five dollars and fifty cents per gross and that no letter from the defendant was ever shown him fixing the price of rings at eight dollars and fifty cents per gross, for rolled gold, and five dollars and fifty cents for electro plated rings. And he further contends that Heiter accepted such order at the time when given (March 27, 1905). It is significant, however, that the order contains these word's: “Kindly acknowledge acceptance of above order and conditions.” Polard admits that to this order he never received any reply. He also admits that, upon March 31, 1905, and before any rings were delivered to him. Messier, the defendant, and Heiter, the salesman, called upon him and, in a conversation then had, Messier spoke about sending electro plated rings, and, in reply thereto, Polard said: “ I don’t care what you call it, electro'plated or brass or solid gold, or anything. What I am contracting for is a ring like sample sealed and signed by you.” He also says that, in that conversation, “ Mr. Heiter said: ‘ Mr. Polard, we have made a test of this ring that you submitted to me and the ring is electro plated and, therefore, we will give you electro plated rings.’ I said, ‘Very well, I don’t care whether you call it electro plated or solid gold or brass, I want a duplicate of this ring sealed by you,’ and he said: ‘ All right we will guarantee that this ring is electro plated and, therefore, you will get the same quality as this ring.’ ” Messier testifies that he made no reply to the letter or order of March 27, 1905, but, on the thirty-first following, in company with Heiter, called upon Polard and stated that, “ I came to see you regarding that ring so that there will be no misunderstanding about it, that we are going to make you an electro plated ring for five dollars and fifty cents a gross, net cash ”; that Polard then gave an order for several gross of different sizes. In this he was corroborated by Heiter, who was present. Subsequently several gross of rings were delivered and, upon May 1, 1905, Polard wrote Messier & Oo. that twenty-five gross of rings had been delivered; that they were not of the quality ordered, and'asking to be advised at once what disposition was to be made of the rings. To this Messier & Co. replied, the next day, that the rings furnished were exactly as agreed upon and "that they had held up the further making of the rings ordered and would ship no more until they heard from Polard. There was testimony to the effect that rolled gold rings like the sample were worth from twelve dollars to fifteen dollars per gross. It cannot be said that the order of March twenty-seventh became a binding contract until assented to by the defendant (Blum v. Daly, 22 Misc. Rep. 342), and it is not shown that the defendant ever assented thereto, unless the act of Heiter, in signing the defendant’s name to the tag attached to the sample ring, can be considered as binding the defendant. It does not appear that Heiter had express authority to bind the defendant. That the plaintiff’s assignor did not so consider it, is shown by the addition of the words to the order: “ Elndly acknowledge acceptance, etc.” There was no acceptance otherwise by the defendant. The subsequent interview of March thirty-first is not disputed, and, as to what occurred there, the defendant’s version is the more reasonable one and is sustained by the probabilities that Messier would not agree to supply rings at five dollars and fifty cents per gross that are conceded to cost from eight dollars to twelve dollars per gross to manufacture. It is quite clear that, if we take all the testimony as given to be true, there was no meeting of the minds of the parties, so as to constitute a valid enforceable contract. 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.” Story Cont., § 318. Pollard understood that he was to have rolled gold rings at five dollars and fifty cents per gross, while the defendant understood that the rings at that price were to be electro plated. The plaintiff has failed to show a valid binding contract as set forth by him in his bill of particulars, and the judgment must be reversed.

Bischoff and Fitzgerald, JJ., concur.

Judgment reversed and new trial ordered with costs to appellant to abide event.  