
    E. Bement & Sons, Respondent, v. George W. Rockwell, Appellant.
    
      1light cf a vendee to revolee cm order for goods before its acceptance.
    
    An order for the shipment of goods may be revoked by the party giving it at ' any time before it has been accepted by the party to whom it is addressed.
    Reargument of an appeal by the defendant, George W. Rockwell, from a judgment of the County Court of Chemung county, entered I in the office of the clerk of the county of Chemung on the 22d day of March, 1898, reversing a judgment of a Justice’s Court in favor of the defendant, dismissing the plaintiff’s complaint.
    On the original argument the Appellate Division affirmed the judgment of the County Court without opinion (62 App. Div. 630).'
    Upon the 20t,h day of December, 1893, the defendant gave to the agent of the plaintiff an order addressed to the plaintiff. and requested it to make and ship to him “ on or about April 1st *. * *
    8 Lever Ajax cults, comp.........$4.25.” This order was signed
    by the defendant. Upon January 1, 1894, the defendant wrote to the plaintiff a letter, of which the following is a copy:
    “ Horseheads, N. Y., Jany. 1 st, 1894. .
    “ E. Bement & Sons,
    “ Lansing, Mich.:
    “ Gentlemen.—-When your Mr. Forster was here I had a sample cultivator ordered and since that time I have set it up and find it equally good as the Ajax and the price 25c. less. If you care to make the price the same on my order of Dec. 20th, viz.: 8 Lever Ajax Oultv. complete at $4.00, 4 mos. June 1st, or 5 per cent July 1st, you can fill the order, otherwise you may cancel it. Awaiting your early answer, I am,
    “Very truly,
    “ GEO. W. ROCKWELL.”
    Other correspondence was had between the parties resulting in the absolute refusal of the defendant to take the goods and the refusal of the plaintiff to accept the cancellation of the order. Thereafter the plaintiff shipped the goods to the defendant, which were not accepted by the defendant, and this action was brought in Justice’s Court for the purchase price thereof. In Justice’s Court the plaintiff was nonsuited. This judgment of nonsuit was by the County Court reversed without opinion. From the judgment of reversal the defendant has appealed to this court.
    
      Richard II. Thurston, for the appellant.
    
      Dailey dc Bentley, for the respondent.
   Smith, J. :

We cannot agree with the learned county judge that a cause of action was proven in Justice’s Court. The order for goods was delivered to the plaintiff’s agent upon December twentieth. Upon January first, before there had been any act upon the part of the plaintiff signifying acceptance of such order, this order was revoked. It is unquestioned law that- an order unaccepted constitutes no contract, and until its acceptance by the party upon whom the order is drawn the right of revocation is clear. The party upon whom the order is drawn may refuse to accept the order or deliver the goods, and until his acceptance thereof there can be no liability upon his part. It follows, therefore, that there can be no liability upon the party giving the order until the acceptance. In McCormick Harvesting Machine Co. v. Richardson (89 Iowa, 525) it is held: “ An order or request in writing, addressed to a dealer or his agent, to ship to the Writer, on or about a date named, goods of a kind specified, for which the writer agrees to pay á price named, does not constitute a contract until accepted or acted upon by the vendor, and may be withdrawn at any time before acceptance.” In Bronson v. Herbert (95 Mich. 478) it is held: “ An order to ship trees, given to an ageht, does not become a binding contract between the orderer and the principals until accepted by them in writing, and notice is given to the orderer of such acceptance.” In Goodspeed v. Wiard Plow Co. (45 Mich. 322) it is held : “ An order for goods does not amount to a contract binding the person who‘gives it until some act is done on the faith of it by the person to whom it is given, or until it is accepted.” In that case, prior to February 13, 1879, one Groodspeed and Fales were partners in business. On the twenty-eighth day of January preceding the dissolution Fales, in in the name of the firm, but iii the absence of Groodspeed and without his knowledge or authority, gave to the agent of the Wiard Plow Company an order in writing for a large number of articles connected with their business, to be shipped on the first day of April thereafter. On the thirteenth of February the firm was dis- , solved, and on the same day the agent was informed of the dissolution. On the fifteenth of February a portion of the article's Were shipped, and the remainder thereafter, all coming into the hands of Fales. There was no proof of any other acceptance of the order than the shipment. The trial court held that Groodspeed was bound by the contract. This was reversed by the Supreme Court upon the ground that the order not having been accepted until after dissolution was a contract made after the dissolution and not before. The opinion in part reads: The order given by Fales made no contract until accepted, and until acceptance could at any time be withdrawn. Inasmuch as the amou'nt of goods exceeded fifty dollars, there could be no binding contract as against the Wiard Plough Company without either a writing or some act done on the faith of the order. Here there was no proof of acceptance of the order in writing if at all.” It will thus be seen that in this case an order given to an agent of the plaintiffs twenty-five days before dissolution and not accepted at that time was deemed not to have been binding upón them as a contract until the acceptance thereof. In Weiden v. Woodruff (38 Mich. 130) the head note reads: “ Assumpsit was brought on the following instrument: [Date and address] You will please send me galvanized lightning rods for my house within sixty days, for which I will give you thirty-five cents per foot, due when work is completed. [Signature.] ’ Held, that this was only an order which the maker, until notified of its acceptance, could withdraw,, and which bound neither party until accepted ; and that the rule excluding parol evidence to modify written contracts did not apply to it so as to exclude evidence of oral agreements entered into when the order was given.”

But this rule of law is not seriously questioned in the brief of the respondent. Its contention is that this objection cannot be for the first time raised upon appeal. The motion for the nonsuit, however, in the Justice’s Court, was made upon the ground that the evidence did not establish a cause of action; and further, that the evidence did not establish the cause of action set forth in the complaint, and further, that the evidence shows that the contract was legally and properly rescinded by the defendant. We think this is sufficient to fully raise this question.in the court below, and that the defendant may now rely upon the same in support of his contention.

We are of opinion, therefore, that the judgment was improperly reversed by the county judge, and that the judgment of the County Court should be reversed, and that of the justice affirmed, with costs to the appellant in this court and in the County Court.

All concurred; Parker, P. J., and Houghton, J., in result.

Judgment of the County Court reversed and of the Justice’s Court affirmed, with costs to the appellant in this court and in the County Court.  