28 N.Y.S. 62 | New York Court of Common Pleas | 1894
The action is for damages for breach of an executory contract to sell a car load of sherry. The answer denies the contract; and whether there was a valid contract is the question for decision. To the validity of the contract, a memorandum of its terms was requisite under the statute of frauds; and such memorandum, the plaintiffs contend, is furnished by the following series of telegrams between the parties: On June 27th, the plaintiffs,, in New York, wired the defendants, in San Francisco: “Will you ship us one or two carloads of sherry?” On June 28th, the defendants answered: “Can furnish one, perhaps two, cars sherry,, at fifty-two and a half cents per gallon, including cooperage, against thirty days’ acceptance,”—to which, on June 29th, plaintiffs replied: “At prices quoted, former terms, you can ship 2 cars by Sunset route.” On June 30th, defendants wired: “Price is net 52-|- cts. without any rebate. If you understand it that way, answer.” On July 1st, plaintiffs replied: “If you cannot do. better, will accept your terms and price. Ship Sunset, one dollar rate.” Finally, on July 5th, defendants telegraphed: “Cannot accept your order for sherry. Partiesi holding refusal of sherry before arrival of your order have taken it.” It is elementary law that to the constitution of a contract the consent of the parties is indispensable; and the consent must be to the same thing, at the same time,—consensus ad idem. Broom, Comm. 252; Bish. Cont. § 313; Pol. Cont 400. So that “a mere offer, not accepted, involves no concurrence of wills, and can never