Levy v. Whipple , 170 N.Y.S.2d 991 ( 1958 )

It is apparent here that there was no meeting of the minds, and assent is essential to consensual contracts. The minds of the parties should meet in respect to the nature and extent of the obligations assumed by each. While there was mutual understanding as to the subject matter, i.e., the material to be purchased, there was neither agreement nor understanding as to the price to be paid. To give rise to a contract, the acceptance must comply with the terms of the offer. A material variation or a conditional acceptance is, in effect, a new offer and a rejection of the original offer. The letter of November 20, 1956, after quoting a charge of $10 additional per ton for packaging the barytes in bags, a sum not contemplated or included in the order, which requested bagging of fine aggregates at a stated price per ton, asked that defendant issue “ a change order, if you desire us to ship the fine aggregates in bags.” We find there was no contract. The order appealed from is reversed on the law, the complaint dismissed, and summary judgment granted for the defendant, with $20 costs and disbursements to appellant.

Concur — Botein, P. J., Frank, McNally, Stevens and Bastow, JJ.