Schenectady Stove Co. v. . Holbrook , 101 N.Y. 45 ( 1885 )

Büger, Ch. J.

It is quite obvious that no contract was ever made between the parties with respect to the sale of the goods described in the order of September twenty-seventh. Their minds never met as to some of the elements necessary to constitute a valid contract. The catalogue of prices, containing a statement of terms of sale, delivered to defendants by plaintiff in August, contained no proposition, as to the amount of goods which the plaintiff was willing to sell, on the terms stated, and until an offer is made by one party, complete and definite in all material terms, it is not possible for another, to make a valid contract by the mere acceptance of a proposition. In other words, so long as there remains any of the material conditions of a contract to be settled and agreed upon, no binding agreement exists.

In both of the orders in question certain stipulations were imposed by the buyers, outside of terms and prices, which required an assent on the part of the vendor to make a valid executory contract of sale. Thus, the vendees required the goods tobe put up in a particular manner, in bundles of uniform size, with only a certain number of articles in each bundle, and that the goods should be shipped to New York in five or six shipments, with ten days or two weeks to intervene between each shipment.

Even if the prices and terms of credit had been agreed upon and understood, the vendor might well have declined to accept the order sent, upon the ground that the period for the delivery of the goods was extended beyond the limit set by them in giving price, viz., the thirtieth of September, or that their proposition, as to prices, related only to orders to be accompanied by immediate delivery, and payments to correspond with such time. Upon an offer of immediate sale at specified terms of credit, the buyer cannot extend the time of payment by postponing the time of delivery, without the vendor’s consent. • .

But there is another objection to the alleged counter-claim. If the price list, delivered to the defendants by the plaintiff, could be regarded as containing a definite proposition to sell, which was open to the defendants to accept, previous to September thirtieth, and thus complete the execution of a contract, it was still, until accepted, a mere proposition, which it was competent for the plaintiff to withdraw at pleasure. The defendant did not, at any time prior to September thirtieth, order goods from plaintiff upon the terms stated in the plaintiff’s price list. They claim that some time during the month of September one Clute, the agent of plaintiff, gave them other terms, and that they, therefore, had a right to order on the modified terms. Assume this to be so, and also that an unconditional order by the defendants of goods, according to the terms as modified by Clute, would, make a valid contract, yet this would not render the order of the twenty-seventh good, for the reason that Clute’s modification was practically withdrawn by the plaintiff before its acceptance by defendants. The plaintiff in the letter of the twenty-fifth of September assumes that, after Clute’s modification, only two rates of discount were open to purchasers under the price list, and that defendants must conform to one or the other in making purchases. In reply to this letter, defendants make the large order of September twenty-seventh, which is in dispute, and require that it shall be accepted upon the terms which they had previously understood Clute to offer.

Even if we assume that Clute did make the modification as claimed by defendants, yet they were informed on the twenty-fifth, that neither Clute nor the plaintiff supposed that he had made any such modification, and the only terms upon which they were willing to make sales were re-stated to the defendants. Notwithstanding this information and the implied disavowal of the Clute terms, the defendants still insisted that the order of the twenty-seventh should be accepted and filled according to their understanding of the prior order. Certainly no irrevocable offer was made by plaintiff, and no contract can be predicated upon an offer which has been modified or withdrawn before an unconditional acceptance. If at ,the time an acceptance is made there is a dispute going on between the parties as :o the terms of the offer, can it be said that the minds of the parties have met when the acceptance of the disputed offer i'sffendered'? We think not.

We have thus concluded that no contract for the sale of the goods mentioned in the order of September twenty-seventh was-made by the receipt by the plaintiff of defendants’ letter of that date; and it is equally clear that none was made afterward.

Upon the twenty-ninth the plaintiff informed the defendants that it was beyond their power to accept that order, and they have never varied from this position. They had the right to reject the order for the reason stated, whatever may have been the truth as to the controversy, relating to terms and- prices ; and after September thirtieth, no offer remained ojaen for the defendants’ acceptance. The order of September twenty-second was made good by the delivery and acceptance of the goods, the plaintiff having severed the orders by distinct and repeated refusals to fill the one of the twenty-seventh.

The judgment should be affirmed.

All concur.

Judgment affirmed.