Myers v. Smith

| N.Y. Sup. Ct. | Apr 2, 1867

By the Court, Bacon, J.

The primary, and, indeed, vital question in this case is whether there was a contract between these parties—an agreement upon which their minds met, executed and complete, or whether it was a negotiation inchoate and unperfected until something should intervene and be determined, in order to give it full effect. The counsel for the plaintiff is entirely right in claiming that a proposition made by one party by letter to another party at a distance, containing a specific offer which is unconditionally accepted by the latter, will constitute a valid contract between them. There are not. many cases in the books on this subject, but they speak a uniform language,- and state the rule with a clearness that cannot be mistaken.

The leading case in this, state is Mactier v. Frith, (6 Wend. 103,) and without recapitulating the facts in that case, it will be sufficient to say that it establishes the proposition that a bargain, evidenced by an offer in writing on one part, accepted on the other, is to be deemed closed when nothing mutual between the parties remains to be done to give either a right to have it carried into effect; that from the moment when the minds of the contracting parties meet, signified by overt acts, the contract is obligatory, and that whatever amounts to the manifestation of a formed determination to accept an offer of a contract of sale communicated to the party making the offer, is an acceptance which will bind the bargain.

This case was followed, and its doctrine applied, in Clark v. Dales, (20 Barb. 42,) where the proposition was by letter, as follows : “ We will engage to furnish you a boat load of flour the last of next week, same quality sent Q-ilchrist and Mozer, at $4.76, free to boat.” The answer returned was, “ We will take the load of flour as per your proposition of the 30th inst.” Here, as the court say, the proposition was explicit, arid its acceptance unqualified. It fixed the price, quality and quantity of the article, and the place of delivery and the time, with sufficient certainty,' and was accepted without qualifications, and was therefore complete, arid could not be' rescinded by either party without the consent of the other.

Bearing these rules in mind, let us look at the alleged contract in this case, and ascertain whether it contains the necessary elements of a complete and obligatory agreement. The complaint alleges that on the 20th of June,-1864, these parties made an agreement in writing, duly subscribed and executed by them, whereby the defendant should sell and deliver to the plaintiff, on boat at Weedsport, ten thousand bushels of malt,, at a certain price, which price should be paid on the delivery of the malt, pursuant to the agreement. This is the substance of the complaint, so far as it alleges the. existence and character and terms of the contract. ,

On the trial, the plaintiff commenced by producing the letter of the plaintiff of June 10th, and following it with the correspondence on both sides, until the closing letter' of June 20th,.by which he claimed the contract was completed. I think the letters are all essential to the case, and that they aid in the conclusion for which we are seeking. Taken together, they manifest an intention on the part of the plaintiff to visit the defendant before the final close of the negotiation, and that, either for the purpose of inspecting the article the plaintiff proposed to buy, or to determine more definitely the time, place and mode of delivery, and until some one, or all of these things were determined, the. contract could not be deemed consummated. Thus, on the 10 th of June, the plaintiff, after some inquiries about malt, and the terms on which it would be offered, says : “ If the offer will warrant, I: will come up and see it.” On the 15th he writes again, soliciting an offer, and adding“ If the price will suit, I will come up and see the malt.” On the 18th of June the defendant answers, stating the terms on which he would sell ten thousand bushels of malt “delivered on the boat at Weedsport,” and to this, on the 20th, the plaintiff replies by letter stating that he would take the malt on the terms stated, “deliverable on boat at Weedsport,” and adds : “1 will be up as soon as I can get away from home, which will be the last of this week, or the fore part of next.” The plaintiff having, in both letters, prior to the 20th, declared his purpose to inspect the malt prior to closing any contract, and on the 20th reiterated his purpose to visit the defendant, the latter was entirely warranted in assuming that the matter was open to further negotiation, and no contract was, or could be closed until that personal inspection had taken place.

Upon these letters, coupled with the oral evidence touching the conduct of the parties, the court ruled that all the letters, taken together, failed to establish any final and unqualified proposition on the one side to sell, and on the other to buy, as alleged in the complaint; and further, that if the alleged contract is confined to the two letters of June 18 tlx and 20th, the proposition of the defendant, contained in his letter, was not so accepted by the defendant in his answer, as to fix and bind the defendant; and upon this, and another proposition which arose in the case, the plaintiff was non-suited.

Yiewing the letters in their connection and sequence, and as evidential of the purpose of the plaintiff, I think that this ruling was right. The intention to accept the price offered is clear enough, but the letters indicate to my mind with equal clearness that an interval was provided for, during which the malt was to be held by the defendant until the plaintiff could not only examine it, but determine in what manner it should be disposed of. The conduct of the plaintiff lends very strong confirmation to this conclusion, and is hardly susceptible of explanation on any other theory. He went up to Weedsport on the 23d of June, but he went, subs tantially, without any funds to pay for the malt, and without any arrangement to procure funds for the purpose of payment, and not only without any boat, but without any arrangement to procure a boat, with any view to an immediate or ulterior delivery of the malt.

But again, if we confine ourselves solely to the letters of June 18 and 20, the acceptance was not in the terms of . the offer so as to fix and bind the defendant. The offer was to sell the malt in question “ delivered” on the boat at Weeds-port. The acceptance was of the malt “deliverable” on boat. This is, it seems to me, a manifest variance from the terms of the offer. The words do not mean the same thing ; they require, or may require something to be done quite different as one or the other should be exacted. If the defendant was only required to deliver - on boat, the operation was very simple; it only obliged the defendant to deposit the malt in the boat, necessitating but a single process of handling and weighing. But suppose the plaintiff was uncertain whether he would have if delivered on a boat; that it might perchance be a good speculation to effect a sale to a third party who might choose some other method of removal. This Plight, and I think would, require the defendant to separate and handle and weigh the whole 10,000 bushels and hold it ready for delivery in any manner, and perhaps at any time, the plaintiff might direct; and if the plaintiff at some future convenient season should conclude to have it delivered upon a boat provided by him, it would require the whole mass to be again handled, weighed and delivered. An acceptance must be in the words of, or must be entirely accordant with, the terms and conditions of an offer, to bind a party who makes the proposition. In this case, the variance made the acceptance a different thing from the offer. As thus expressed, it could not have been claimed by the defendant to be binding on the plaintiff, and he could not have maintained an action for its alleged breach ; and for this reason, as well as upon the ground that there was a contingency expressed in the letter, to wit, the visit of the plaintiff to the defendant and an inspection of the malt prior to a full close of the negotiation, the defendant could not have enforced it as a valid contract against the plaintiff, if he had repudiated its obligations. A contract of this nature must be mutual in its obligations, or it has no binding force upon either party.

I have not deemed it important to consider what effect the subsequent conduct of the parties has upon the question of whether or not there was a binding contract of sale as alleged by the plaintiff. There is certainly nothing in the acts or declarations of the defendant which can be affirmed as a ratification and assent to the terms of the contract, either directly or by implication. What he attempted or expressed a willingness to do, if it could be accomplished, was entirely voluntary on his part, and the effort failing, did not attach to him any liability as for a breach of contract.

The offer and tender, such as it was, by the plaintiff on the 15th of July, might, if that question had fairly and necessarily arisen, have been held by the court as entirely too late. The court did indeed hold that the defendant was not bound to wait until the 15th of July for the plaintiff to demand performance, and I see no error in the ruling. But the question does not seem to me to have any importance in this case. If there was no valid and existing contract between these parties, as the court held, and rightly as I think, then any offer or tender on the part of the plaintiff1 to perform on his part would be of no importance. Such an offer, however complete, gives no vitality to that which has no life in itself. An offer and demand of performance may be necessary to atone for an apparent laches and to ■ put the other party in default, but they assume the existence of a contract of which the party offering and demanding has a right to require the performance, and they have no effect where there is no existing and' obligatory contract to which they may be referred, and to which they are a necessary supplement.

There was another ground on which the motion to nonsuit the plaintiff was granted, to wit, that the alleged contract was not stamped as required by the revenue act. The contract claimed in this case was evidenced by the two letters of June 18 and 20, and consequently both were required to be stamped. The letter of the 20th transmitted to the defendant never was stamped, but a copy in the plaintiff’s letter book was stamped, and the plaintiff testifies that on the day after its receipt he stamped the defendant’s letter of the 18th and he canceled them both. There is no pretense that the defendant ever stamped his letter, and no proof that he ever saw the stamp after it was affixed, and consequently there can be no claim that he ever assented to the stamping or the cancellation." I am of opinion that this "is no such stamping as the act requires, and this being so, the paper is void.

The act ((§ .151) provides that the stamp duty shall be levied- upon and collected in respect to the paper upon which it is placed, from the person or party who "shall -make, sign or issue the same, and a subsequent section provides that the person using, or. affixing the same shall write the initials of his name: and the date when the same is affixed. It is clear to my mind that the person executing the document which requires the stamp is the one to affix it, and that in any event, it cannot be affixed, nor the cancellation be made by another party, without the actual knowledge and express or implied assent of the party who issues the paper on which the stamp is placed, neither of which things existed in this case.

The stamping by the collector did .not remedy the. difficulty. Waiving the question whether this could be done so as to relate back to the date of the letter and render it valid from that time, it seems very clear that the person who is to appear before the collector to procure the stamping and* cancellation is the person who issued the paper and who should have affixed the stamp. He it is upon whom the penalty by section 158 is imposed, and he can only be relieved by appearing and making the application and securing the indemnity. If a party having an interest in the paper shall desire it to be thus stamped for his benefit, he can only effect it by procuring the maker or party to be affected by it to appear before the collector and procure the stamping and cancellation. Without his knowledge, and against his presumed assent, it surely cannot be done, and in this case there is not only no pretense of either knowledge or authority, but it was done at a time and in a manner to which the defendant would most strongly have dissented.

(Onondaga General Term, April 2, 1867.

On both grounds, I think, the nonsuit was properly granted, and that the motion for a new trial should be denied, and judgment ordered for the defendant.

Judgment accordingly.

Morgan, Bacon, Foster and Mullin, Justices.]