
    Edgar F. Kirwan et al., App'lts, v. Edward F. Byrne, Resp’t.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed June 4, 1894.)
    
    
      1. Contract — Constiuiction,
    Where there is substantially no dispute as to the facts, the construction of a contract is for the court.
    2. Same—Execution.
    Where a written contract, when submitted by the vendor, is changed by tbewendee, to which change the vendor refuses to concede, no contract exists, and the latter is at liberty to discontinue the negotiations.
    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 Eoarts L. Prentiss, for app'lts; Thomas C. E. Ecclesine. for resp’ts.
    
      
       Affirming 57 St. Rep. 863.
    
   Bookstaver, P. J.

This action is for damages for breach of contract to sell and deliver fifteen hundred boxes of coke tin. Defendant made the following offer to plaintiffs, he having dealt with them as broker for five or six years: “From Edward F. Byrne, Metal Broker, to Messrs. Kirwan & Tyler, 54 Cliff street. New York, 16th May, 1891. Gentlemen : I can offer you, subject to prior sale, fifteen hundred boxes i. e. 14 x 20 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 respectfully, Edward E. Byrne.”

On May 18th plaintiffs telegraphed:

“Mr. E. F. Byrne.
“We accept your offer 16th, if full weight plates,
Kirwan & 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 14 x 20 standard weight Bessemer steels, and beg to enclose 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. Kirwan & Tyler, fifteen hundred boxes i. e. 14x20 Bessemer Sheet 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. E. 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 19th 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 tnreeday 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 20th, that Messrs. Byrne & Son would not agree to the terms inserted in the contract, and had cancelled 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 city 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 was a mere agent, and by the further negotiations between the parties. Plaintiffs’ acceptance was conditional. Vassar v. Camp, 11 N. Y. 441; Myers v. Trescott, 59 Hun, 395; 36 St. Rep. 235 ; 13 N. Y. Supp. 54, and cases cited; Corcoran v. White, 117 Ill. 118. Defendant’s reply acknowledged the receipt of the order, and enclosed 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. Fraser v. Small, 37 St. Rep. 900; 13 N. Y. Supp. 468 ; Bristol, etc., Aereated Bread Co. v. Maggs, 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.  