Frederick R. Smith, Inc. v. Karsh

Per Curiam.

Plaintiff sues for its damage for breach of a contract to make certain alterations in defendant’s steam-heating plant.

The principal question involved and the only one that .requires ■ our attention, is whether any contract was ever entered into between the parties. The complaint alleges that “ on or about July 20th, 1923, a contract was entered into * * * ” (in apparent reliance upon a letter sent by the plaintiff on that date). Plaintiff’s counsel in a colloquy in relation to the admission of evidence said: “ The one of July 20th is the contract, at least, the paper of July 20th sets forth the contract, plus verbal conversations.” There is, however, no proof in the record that the letter of July- 20th was accepted either orally or in writing, and respondent’s brief treats the contract as an oral one made at a meeting on the nineteenth of July. Plaintiff admits that at that iconference the question of the time and terms of payment were left open. This conference of July nineteenth amounted, therefore, to nothing more than an agreement to agree such as is discussed in Mayer v. McCreery, 119 N. Y. 434. It might be said that the letter of July twentieth constituted an offer which might ripen into a contract by an overt act as in White v. Corlies, 46 N. Y. 467, but the overt act which is there discussed as indicating an acceptance must, of course, come from the offeree, whereas the only act performed by either party in the instant case following the letter of July twentieth was the commencement of work by the offeror himself.

The judgment must, therefore, be reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.

All concur; present, Guy, Bijur and Mullan, JJ,