
    Clerihew R. Treat, Appellant, v. Lewis Ullman et al., Respondents.
    (Supreme Court, Appellate Term,
    April, 1901.)
    Sale — Offer and acceptance.
    After vendors had written vendees the lowest price they would take for their goods, the vendees advised forwarding the goods and wrote: “ We will no doubt obtain satisfactory prices.” The vendors
    forwarded the goods, after receipt of the answer, and wrote: “ Please do the best you can.”
    Held, that the vendees had not accepted the terms of the first letter of the vendors, and were not liable to them for the price stated therein as the lowest which the vendors were willing to take.
    Appeal from a judgment in favor of the defendants, rendered in the Municipal Court of the city of Mew York, tenth district, borough of Manhattan.
    Eichard Curd Daniel, for appellant.
    Arthur Eurber, for respondents.
   Per Curiam.

The judgment below should be affirmed, as no contract was entered into between the defendants and the plaintiff’s assignor.

On February 3, 1900, the latter writes to the defendants — whether they could sell for him a- lot of shopworn children suits, saying: “ They ought to net us $2.00, but, rather than not sell them, would take 10$ less.” In reply to this the defendants wrote: “ Would advise you to ship the children suits by express on receipt of this and we will place them in this week’s special sale, and we will no doubt obtain satisfactory prices.” The suits were forwarded, together with a letter which read: “We have this day sent you by N. Y. & B. Ex. 165 suits as we received yours in reply to ours of February 3. Please do the best you can and oblige,” etc.

It is clear from the foregoing that the tentative terms of the plaintiff’s assignor were not accepted. The defendants had “ no doubt ” they could obtain “ satisfactory prices,” but did not bind themselves to realize ten per cent, less than two dollars. The plaintiff’s assignor forwarded the suits on the strength of the defendants’ letter, and must be deemed to have waived their original terms by expressing a willingness to abide by the best terms the defendants could get. In any event there was no meeting of the minds of the parties on the first proposition submitted.

Present — Bischoff, P. J., Leventritt and Clarke, JJ.

Judgment affirmed, with costs.  