63 N.Y.S. 1074 | N.Y. App. Div. | 1900
This case was tried by the court without a jury — the complaint was dismissed, and from the judgment entered thereupon this appeal is taken. The action was brought to recover for goods sold and delivered. The dealings between the parties concerning the merchandise were by correspondence. On the 3d of October, 1899, the defendants wrote to the plaintiffs a letter in which, among other things, is contained the following: “ Also send us a piece of the fourteen-ounce Green, of which you state you have thirty pieces at eighty-seven and a half cents per yard. We will look it over, and if same is satisfactory, might purchase them.” That letter ivas received by the plaintiffs on the fourth of October, and on the same" day they sent to the defendants a sample piece of the green fabric-mentioned in the extract above quoted. Still, on the same day, the-.
We concur in the view of the correspondence taken by the trial judge. The first letter of the defendants relating to the thirty pieces of goods is very emphatic in its requirements. Acceptance or rejection of the offer to buy at eighty cents a yard was required by return mail. There was no acceptance, but only a declaration that the offer would be submitted to some one else than the plaintiffs. As the trial judge held, the defendants were entitled to consider their offer as rejected (Taylor v. Rennie, 35 Barb. 272; Maclay v. Harvey, 90 Ill. 525), and, as he also held, the suggestion of the plaintiffs to submit the defendants’ offer to the mill was not an acceptance of that offer, “ but rather in the nature of a counter proposition or offer.” (Briggs v. Sizer, 30 N. Y. 651.)
If the case contained no other feature than that thus far considered, there could be no question of the correctness of the decision of the court below. It is insisted, however, by the plaintiffs that the defendants have waived their strict legal rights arising out of the exact requirement of their letter of October fourth; that the defendants are to be regarded as having acquiesced in the plaintiffs’ submission of their proposition to buy to “ the mill,” and the contention is made that the letter of October ninth shows that acquiescence and is evidence of a waiver of the strict requirement of the letter of October fourth. A waiver is not to be inferred in this case from an acceptance of the goods or any part of them. There was no acceptance. On the very day on which they were sent by the plaintiffs" to the defendants, the former were notified that the latter would not accept them, and, therefore, such cases as Silberman v. Fretz (12 App. Div. 328); Avery v. Willson (81 N. Y. 341), and Dent v. North American Steamship Co. (49 id. 390) do not apply. The question is, whether what is found in the letter of October ninth has the effect of placing the defendants in any other attitude to the plaintiffs than that in which they stood when their offer of October fourth was made. It is argued by the plaintiffs that the reference contained in the defendants’ letter of October ninth, to their letter of October
We are of opinion, therefore, that the defendants’ position was not changed, and that in no just sense can it be said that there was a waiver of their right and that they should not be compelled to accept and pay for goods they never contracted to purchase or receive.
The judgment should be affirmed, with costs.
Yah Brunt, P. J., Rumset, O’Brien and McLaughlin, JJ., concurred.
Judgment affirmed, with costs.