
    CHARLES NEUSS, TRADING AS M. NEUSS & SONS, PLAINTIFF-APPELLANT, v. VAILSBURG AMUSEMENT COMPANY, INCORPORATED, A CORPORATION, DEFENDANT-REPONDENT.
    Submitted October term, 1928
    Decided March 11, 1929.
    Before Justices Tbenchabd, Kaliscit and Lloyd.
    Eor the appellant, Joseph SussTcind.
    
    Eor the respondent, Richard J. FUzmaurice.
    
   Pee Cubiaji.

Plaintiff appeals from a judgment rendered against him in the First District Court of Newark. The action was to recover on an alleged contract for the sale of floor coverings for the defendant’s theatre, and it appears from the state of the ■case as found by the presiding judge that the plaintiff furnished to the defendant an estimate of $715 which the defendant accepted with this qualification: “Please do not proceed with this work until you hear from me.” Plaintiff then purchased material to make up the order. Defendant, however, never directed the order to be made up and the carpet was never made. Plaintiff proved the profit that he would have made and that he could not sell the material that he had bought to make up the carpet. The judge then states: “In my opinion, under the form of the acceptance of the estimate, either party was at liberty to withdraw from the contract,” and gave judgment for the defendant.

It is claimed that this was error. The proofs in the ease' are too meagre to justify this court in holding that the judgment so rendered was error. The estimate given by the plaintiff to defendant is not printed nor are its terms set forth in substance other than the price. Whether, therefore, the defendant was within its rights in failing to direct the plaintiff to make up the carpet cannot be determined. It was incumbent on the plaintiff to show that the contract, whatever it was, was violated. This he did not do.

The judgment is affirmed.  