140 N.Y.S. 916 | N.Y. Sup. Ct. | 1913
On June 23, 1911, defendant signed and delivered to a representative of the plaintiff a paper reading:
*166 “ The National Cash Register Company, Dayton, Ohio: — Please ship as soon as possible to the undersigned # . * * one of your No. 542 Registers. * * • * In consideration of the above the undersigned agrees to pay you three hundred eighty dollars * * * on the followings terms: $380.00 cash on arrival of register, less 5% * * *. It is expressly agreed that this order shall not be countermanded; that it covers all agreements between the parties hereto relative to this transaction and that you shall not be bound by any representation or promise made by any agent relative to this transaction which is not embodied herein.
“(Signed) Henry F. McCann.”
On June 30,1911, plaintiff sent the defendant a card reading:
‘1 This is to acknowledge receipt of your order dated 6-23-1911 for 1 of our No. 542 Cash Registers. We thank you for your order and assure you that it will have our best attention.
“The National Cash Register Co.”
On July 7, 1911, the defendant wrote to the plaintiff a letter reading:
, “ Gentlemen : — Referring to my order of June 23 given your Mr..Blacklock for one # 542 Cash Register to be shipped me at once, inasmuch as this register has not been shipped as yet, you may cancel my order for same.
“ Tour very truly,
“ Henry F. McCann.”
On July 13, 1911, the plaintiff acknowledged receipt of defendant’s letter of July 7, 1911, canceling the
Two very serious questions are presented as to the right of the plaintiff to recover. First, was there a contract between the parties? Second, if so, has the plaintiff complied therewith?
There was a contract, provided the plaintiff accepted defendant’s offer prior to July 7,1911, when defendant canceled the order. The only claimed acceptance by the plaintiff of the defendant’s offer of June 23, 1911, prior to July 7,1911, was the writing of the card June 30, 1911, wherein plaintiff acknowledged receipt of the order and ‘1 assure you it will have our best attention.” Was that an acceptance? Was it an agreement on the part of the plaintiff that it would comply with the terms of the order? Did it thereby agree to ship to defendant the cash register as soon as possible? What does it mean when plaintiff says, “ We thank you for the order and assure you it will have our best attention? ” In what way is the plaintiff to give its attention to the order? Does it mean that plaintiff will investigate defendant’s financial responsibility and ascertain whether a cash register could safely be shipped him before shipping it “ as soon as possible? ” Does it mean that the plaintiff may or may not ship the register as the exigencies of the transaction demand? Does it mean that the plaintiff may or may not ship the register as the interests of the plaintiff may demand?
Upon the assumption that there was a contract, the plaintiff cannot recover except on proof that it did in fact ship the register as soon as possible. The proofs of the plaintiff simply establish that upon receipt of the order it was handled the same as other orders in the regular manner; that plaintiff began the manufacture of the register, consuming about ten weeks’ time, which was required in the ordinary course of plaintiff’s business to build and ship the same; that plaintiff simply built and shipped the register within the time it could be done following the ordinary course of its business. But such was not the contract tendered by the defendant. Defendant’s proposition was to pay for a register
In Sentenne v. Kelly, 59 Hun, 512, the plaintiff agreed to deliver certain signs as soon as possible. The trial judge instructed the jury that, “As soon as possible ” was synonymous with “ a reasonable time; ’’-the General Term said the trial judge ‘ ‘ qualifies the latter expression in such a way to bring it within the rule so that the jury were correctly instructed with regard to plaintiff’s duty in reference to delivering the signs with all possible expedition.” Judge Van Brunt said: “ ‘ Within a reasonable time ’ seems to mean within such time as it can be done, following- the ordinary course of business. ‘As soon as possible ’ seems to mean as soon as can be done, using the greatest diligence.”
Defendant’s proposition was that, if the plaintiff-would ship the register as soon as possible, the defendant would pay for it, not if the plaintiff would manufacture and ship as soon as possible. The proof that plaintiff in the ordinary course of its business from June 30, 1911, to September 14, 1911, manufactured and shipped the register to defendant is not proof that the plaintiff shipped as soon as possible after June 30, 1911, the register to defendant.
While there is authority for the admission in evidence of the conversation of the defendant and the representative of the plaintiff to show the circumstances under which the defendant’s offer was made and what was meant by the term ‘ ‘ as soon as possible ’ ’ (Cocker v. Franklin Hemp & Flax Mfg. Co., 3 Sum. 530; Coates v. Sangston, 5 Md. 121), the views herein
Judgment is awarded the defendant, dismissing plaintiff’s complaint, with costs.
Judgment for defendant.