
    Henry W. Patch and Robert C. Patch, as Administrators, etc., of Evaline L. Patch, Deceased, Respondents, v. Mason M. Smith, Appellant.
    
      Memorandum of sale — idhen a memorandum that “this order is subject to acceptance” will be disregarded.
    
    Where the following memorandum of sale:.
    '“M. M. Smith: Sept. 7, 1903.
    “Bought of JEL W. &■ R. 0. Patch, Berkshire, ÍT. Y. * * * One car 4-4 oak, as shown, at §24.00 f. o. b. on car Richford, to include 2 M. 4-4 cherry at §25.00 f. o. b., bark edges to be measured off.
    “D. O. KNIBBS, Agt. for
    “M. M. Smith.” is written upon the face of a printed blank, used by M. M. Smith when his customers ordered lumber from him, but which was not appropriate for use when Smith ordered lumber from another, such memorandum is to be regarded as complete in itself, and the following matter printed at the bottom of the blank over Smith’s name, "‘this order is subject to acceptance at the main office,” constitutes no part of the contract of sale evidenced by the memorandum.
    Appeal by the defendant, Mason M. Smith, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Tioga on the 10th day of October, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of September, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Lewis T. Payne, for the appellant.
    
      H. A. Clark, for the respondents.
   Chester, J.:

The action is one brought to recover the purchase price of a pile of oak and cherry lumber alleged to have been sold and delivered to the defendant by the plaintiffs. It appears that the lumber was piled in one pile in a mill yard and that Robert C. Patch, one of the plaintiffs, and the defendant’s agent, one Knibbs, went to the pile September 7, 1903, and examined the lumber. The plaintiffs’ claim is that the pile was sold to the defendant on that day. The defendant’s claim is that the pile was simply ordered that day and that it was subject to inspection and acceptance thereafter.

It appears that, after the examination by the defendant’s agent of the pile, he delivered to Patch a memorandum as follows:

“ M. M. Smith :

Sept. 7, 1903.

“ Bought of H. W. &o R. C. Patch, Berkshire, N. Y., * * * One car 4-4 oak, as shown, at $24.00 f. o. b. on car Richford, to include 2 M. 4-4 cherry at $25.00 f. o. b., bark edges to be measured off. D. O. KNIBBS, Agt. for

“ M. M. Smith.”

This memorandum was written upon the face of a printed blank which was evidently prepared for and used by the defendant when his customers ordered lumber from him, but which was not appropriate for use when he ordered from another. . It contained, printed with other printed matter over the defendant’s name, in a paragraph at the bottom: This order is subject to acceptance at the main office.” We think this paragraph formed no part of the contract and that the memorandum of sale is to be regarded as complete in itself and the same as if written on any other piece of paper.

On September 24, 1903, the plaintiffs caused the lumber to be loaded on a Hew York Central car at Bickford. It was shipped to the defendant at Bochester. When the lumber was received at Bochester the defendant paid the freight on it and it was unloaded from the car. About a month afterwards the defendant wrote to the plaintiffs complaining of the quality and measurement of the lumber. He declined to pay for it and this suit ensued.

There is a conflict in the evidence as to what occurred between Knibbs and Patch at the pile. Patch testified in substance that Knibbs said that if there were any mill culls in the lot he would want to measure them out; that he (Patch) refused to consent to this and said that he did not understand the grading of lumber, and that he would have to sell it as a pile, as he had no way of knowing what, a mill cull was, but that he would throw out anything that was a thoroughly poor board. Patch also testified that Knibbs “ asked me, after seeing the lumber, what we wanted for it, and I said $24.00 per M. for the oak and $25.00 for the cherry, and it was accepted there and then. * * *

He stated that he would make out an order after we got back to Berkshire and he did so.” When they returned to Berkshire, Knibbs made and delivered to Patch the memorandum above mentioned. Knibbs testified that he told Patch that the order would have to be confirmed by Smith, the defendant. This, however, is denied by Patch. The defendant claims that Patch made representations as to the quality of the lumber in the pile, which he relied upon; that the lumber was not in fact of the quality represented, and that in the conversation which ensued there was an agreement that the lumber should be measured and accepted by one Japhet. It appears, however, that neither Japhet’s name nor any question over the inspection or measurement arose until some time after the delivery of the memorandum of purchase, and what there was about that matter appears wholly by the correspondence which ensued. It is entirely clear from such correspondence that there was never an agreement between the parties making measurement or inspection by Japhet a condition precedent to the delivery of the lumber, or to the passing of the title of it to the defendant. Except the conversation between Patch and Knibbs upon the day of the alleged sale, all communications between the plaintiffs and the defendant were by correspondence. This, to my mind, shows very clearly that the plaintiffs’ theory of the controversy is the correct one.

In the first letter written by the defendant to the plaintiffs, under date of September 8, 1903, he alludes to the memorandum made by Knibbs as a memorandum order for a car of 4-4 white oak he purchaser! of you at $24.00, * * * and he has also purchased about 2,000 ft. of inch cherry at $25.00 to go in the same car.” This letter also contains the following: “ How when will you be ready to ship this? We see no reason why you cannot measure this yourselves, and if there is any slight variation we can correct it at the other end.” In the reply to this letter the plaintiffs, under date of September eleventh, call attention to the fact that the lumber was not white oah but was red oah, and suggested the name of Mr. Japliet as a reliable man to measure the lumber. It appears that Japhet was communicated with by the defendant, after which the plaintiffs wrote the defendant, under date of September seventeenth, that Japhet had informed them that the defendant wished him to grade the lumber as Ho. 1 and Ho. 2, etc., and in that letter plaintiffs informed the defendant that Knibbs said nothing to them about Ho. 1 and Ho. 2, and that their understanding of the deal was that they ■ sold the.lot for twenty-four dollars, “ excepting only the measuring off of bark edges and throwing out anything that is really a poor board.” In reply to this letter, under date of September eighteenth, the defendant wrote, stating the reason we asked to have Mr. Japhet grade this stock was simply to determine how it run for quality; that is, how much good there was and how much common, so that our customer would know just how it run before he received the car and know what disposition to make of it. As you are aware, one lot of oak might run a good deal poorer than another, hence our requesting him to give us an inspection would have nothing to do with our purchasing of you at all, for we purchased this pile run.” This letter would seem to he conclusive against the contention of the defendant. Much of the trial was taken up with expert testimony as to the quality of the lumber when it was received at Rochester, but if the plaintiffs’ theory of the sale is correct the questions of quality and grade were wholly immaterial, for the defendant had, through his agent, examined the pile and purchased it as it was, or pile run.

The conflicting theories of the parties and the conflicting evidence in support thereof, were fairly submitted to the jury by the trial justice in his charge, and I think their verdict in support of the plaintiffs’ contention is abundantly supported by the evidence,' and, therefore, that the judgment should be affirmed, with costs.

All concurred.

Judgment and order unanimously affirmed, with costs.  