206 A.D. 242 | N.Y. App. Div. | 1923
The claim of the plaintiff was that the defendant breached a contract, which had been made, in refusing to accept delivery of paper ordered under that contract. The contract between the parties is embodied in letters, one written by the defendant ordering certain quantity of paper “ to be identical to sample # 878 shown in your sample booklet. We particularly caution you that this paper must be equal in every respect, in quality, color and finish, to that shown in your booklet.”
The acceptance of plaintiff by letter on June 8, 1920, states that it will furnish goods “ as per our sample # 878,” and quotes an extract from a letter from the mill of plaintiff, or plaintiff’s manufacturer, in which this sentence is used: “ In making up
these papers we will instruct our factory to match samples attached to your letter as closely as possible.”
The plaintiff had a judgment in the Municipal Court in its favor for damages against the defendant for declining to receive the deliveries of paper. At the Appellate Term this judgment was reversed on the ground, as stated in the opinion (118 Mise. Rep. 744), that the exchange of letters evidenced no meeting of the minds of the parties, because it was there held that the order of purchase of goods “ identical to sample ” was not accepted by the statement “ we will
I think that a contract was made by the parties in the series of three letters, terminating in the one of June 8, 1920, for the purchase by defendant of the 1,000 reams of friction glazed paper as per sample. Whether or not the terms contained in plaintiff’s two letters were a counter offer, such offer was accepted by the defendant, which through its actions must be deemed to have assumed the existence of the contract, and requested plaintiff to go forward with performance. Whether or not there was an acceptance of defendant’s offer in its identic terms, and even if its letter be considered a counter offer, the conduct of defendant was such that its action must be interpreted as an acceptance by defendant of the counter offer. A few days after the receipt of the letter of June eighth defendant wrote and asked the plaintiff to make certain changes in the markings of the packages, which plaintiff replied to, confirming the fact that it had made these alterations on June sixteenth; and later defendant again asked for a slight change. Defendant’s representative inquired of plaintiff’s officer whether or not it would be possible for the plaintiff to furnish prices thirty days before manufacture. Plaintiff endeavored to secure this information from its manufacturer, and when it received advice as to the manufacturer’s price, it added a reasonable charge for its own services and gave a final price to the defendants in August, 1920. Defendant replied to this letter on September fifteenth, and again on October fourth, without asserting that there was no contract, and without complaint that plaintiff was endeavoring to furnish an article not in accordance with defendant’s order by sample, but claiming solely that the price named by plaintiff was not in accordance with their understanding. The letter of September fifteenth reads: “ Referring to our orders of the above numbers under date of May 18th. The prices named by your letters of August 13th and 17th are not in accordance with the conditions of our orders. We, therefore, decline to accept delivery of paper unless tendered at prices conforming to the express stipulations of our orders.”
It is uncontradicted that, after the defendant’s order had been sent, before plaintiff’s reply of June eighth, when plaintiff’s representative told defendant’s officer that the price prevailing (the term used in the contract or order) was the manufacturer’s price, plus seller’s profit, one Mr. Redding, defendant’s representative,
The testimony shows the manufacturer’s price, based on his cost of production, and the reasonableness and fairness of such price were confirmed by an expert witness who was not in the employ of plaintiff’s manufacturer but was engaged in the same business with a certain concern manufacturing similar types of paper products. There is no direct contradiction of this testimony. Such proof as is offered opposing it relates to paper unlike the sample or only remotely resembling it, or to paper of the kind purchasable only in such small lots as might be fortuitously gathered. The price was, therefore, both according to the terms of the contract and the agreed meaning thereof, in discussions of the matter of price between the parties, the sum that was proven on the trial, and the damages were properly admeasured as the amount which plaintiff lost by reason of the defendant’s breach of that contract, that is, the difference between the contract price, i. e., the manufacturer’s price, plus plaintiff’s profit, and the cost of production of the goods, which in this case, as the plaintiff’s manufacturer was the only one who could supply the goods, was the price which he charged the plaintiff. The paper was manufactured for plaintiff for ten dollars and twenty-eight cents per
The sum' awarded was proper, and the determination of the Appellate Term should be reversed, with costs, and the judgment of the Municipal Court reinstated and affirmed, with costs
Clarke, P. J., Dowling, Finch and Martin, JJ., concur.
Determination of Appellate Term reversed, with costs, and judgment of the Municipal Court affirmed, with costs.