
    August Marshall et al., Resp’ts, v. Eisen Vineyard Company, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 2, 1894.)
    Contract—Where consummated.
    An absolute acceptance of an offer in its exact terms, is indispensable to the formation of a contract.
    Appeal from judgment of general term, city court, affirming judgment on verdict. The opinion states the case.
    
      Douglass & Minton, (John B. Adger Mullally of counsel), for app’lt; Rose & Putzel (Gibson Putzell, of counsel,) for resp’ts.
   Pryor, J.

The action is for damages for breach of an executory contract to sell a car-load of sherry. The answer denies the contract; and, whether there was a valid contract is the question for decision. To the validity of the contract a memorandum of its terms was requisite under the Statute of Frauds; and such memorandum the plaintiffs contend is furnished by the following series of telegrams between the parties: On June 27th, the plaintiffs, in New York, wired the defendants in San Francisco, “Will you ship us one or two car loads of Sherry?” On June 28, the defendants answered, “Can furnish one, perhaps two cars sherry at fifty-two and a half cents per gallon, including cooperage, against thirty days acceptance;” to which, on June 29, plaintiffs replied: At prices quoted, former terms, you can ship two cars by Sunset route.” On June 30, defendants wired, “Price is net 52, 1-2 cts., without any rebate; if you understand it that way, answer.” On July 1, plaintiffs replied, “If you cannot do better, will accept your terms and price, ship Sunset, one dollar rate.” Finally, on July 5, defendants telegraphed, “Cannot accept your order for sherry, parties holding refusal of sherry before arrival of your order have taken it.” It is elementary law that to the constitution of a contract the consent of the parties is indispensable; and the consent must be to the same thing at the same time consensus ad idem, Broom’s Com. on Common Law, 252 ; Bishop on Contracts, § 313 ; Pollock on Contracts 400. So that, “a mere offer, not accepted, involves no concurrence of wills, and can never constitute a contract.” Bishop on Contracts, § 321. And, “ though there is an acceptance, if it is not to the exact thing offered, or if it is accompanied by any conditions or reservations, however slight, in time or otherwise, no contract is made. It is the same where new terms are introduced; they constitute an offer on the other side, and leave the question open. Bishop, § 323. These fundamental principles in the formation of contracts-suffice to determine whether an obligatory engagement between the parties to the action, was consummated by the above correspondence. The direction as to the mode of shipment may be laid out of -view, as not an element of the supposed contract.

Manifestly, an obscurity lurlcs in the words “ former terms ” in the telegram of June 28. What term? Clearly, the parties had in mind previous conditions in bargains between them; &nd these '“former terms” nowhere appear in the correspondence. The telegram of the 27th, reciting the quantity of sherry to be sold, the price, and the time and method of payment, embodies all the essential stipulations of a contract of sale. And yet in purporting to accept the offer, the plaintiffs interpolate the further conditions that their acceptance is dependent also on “former terms.” What those terms may be, is not indicated by the defendant’s reply, which merely restates-the price by a more explicit expression; nor by plaintiffs’ response, which accepts “terms and price.” Nor, again, is it possible to collect from the correspondence, whether the sale .was of one or two car-loads of sherry. .The plaintiffs’ offer was to buy one or two car-loads. The defendant’s offer was to sell one, perhaps two carloads. The correspondence fails to disclose that the parties finally agreed on a sale of one car-load—the contract on which the judgment was recovered. The fact that the complaint contains a count for two car-loads of sherry as well as for one, is a concession that even yet the plaintiffs have not definitely accepted either alternative of the offer. Again, in the-telegram by which the plaintiffs’ claim that they closed and consummated the contract, they say, “if you cannot do better will accept your terms and price.” Not in the definition of lexicographers only but in popular apprehension as well, “if” is a word which introduces a conditional clause; supposing, pro-, vided.” Stormonth, The Century Dictionary—and all others. Plainly, a promise by one to another if the other will do a certain thing, is not absolute but conditioned that the other do the thing. In saying if you cannot do better I will accept your offer, the plaintiffs referred the matter back to the defendants for reconsideration, suspending meanwhile their acceptance of the offer. The construction would be different, had the plaintiffs said, “ as-you will not do better I accept your offer.” At this point the defendants withdrew the offer; and hence no agreement was perfected between the parties. A reversal of the judgment is the-necessary consequence. Judgment reversed and a new trial ordered ; costs to abide the event. All concur.  