
    Morris Asinof & Sons, Inc., Respondent, v. Carl Freudenthal, Appellant.
    
      Contract — sale —• alleged breach of contract to purchase merchandise — defense that minds of parties had not met.
    
    
      Asinof & Sons, Inc., v. Freudenthal, 195 App. Div. 79, affirmed.
    (Argued March 10, 1922;
    decided March 24, 1922.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 4, 1921, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial. The action was to recover for an alleged breach of contract to purchase merchandise. The complaint alleged that the plaintiff agreed to sell and deliver to the defendant, and the defendant agreed to purchase, two hundred and eighty pieces of mackinaw cloth, consisting of about forty-five yards to the piece, at the agreed price of $2.50 per yard, delivery f. o. b. New York, $5,000 to be paid in cash immediately upon receipt of the invoices by the defendant and the balance to be paid on or before January 5, 1918, with a proviso by which plaintiff was to be released from liability with respect to fifty-one pieces of the cloth, which then were in transit to the plaintiff, in the event that they were not received by it, and the defendant was given an option to take any or all of seventy-five additional pieces at the same price in case they should be received by the plaintiff as expected. Defendant claimed .that the minds of the parties had not met on a binding contract.
    
      Jacob H. Corn for appellant.
    
      Louis Salant for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

Concur: Hiscock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  