128 N.Y.S. 306 | N.Y. App. Div. | 1911
I am unable to find any legal contract by the defendant to deliver to the plaintiff the cider press under the terms stated in the paper of the twenty-eighth of August. It seems to me clear that that paper was simply an order for the press subject to acceptance by the defendant at Syracuse and does not purport to be a contract by which the defendant agreed to deliver the press upon the terms therein written. The paper is addressed to the defendant at Syracuse. It “ authorized and requested ” the defendant to ship to the plaintiff this cider press upon the terms named. So far the paper does not purport to state any contract, but is an unequivocal order, which is subject to acceptance thereafter by the defendant. Defendant claims, however, that the whole purport of the paper is changed from an order into a contract by the words in the lower left-hand corner “ Sold by Geo. IT. Schlegel.” The words “ Sold by ” as there used are part of the printed form. It is inconceivable that the defendant intended by this single line to change the whole legal import of the paper from what without it would be a distinctive order into a binding contract. It seems to me the undoubted significance of that phrase is simply to designate the salesman who negotiated the order for the defendant’s purposes only. The paper does not purport to be signed by the defendant nor by any one in its behalf, and whatever significance would otherwise be attached to the words “ Sold by ” as there used is completely controlled by
And this construction accords with commercial usage. Ordinary salesmen are not usually given authority to make, binding contracts. The contract in question illustrates the danger of such authority. The cider press was not to be paid for until the press was set up and making cider. If an ordinary salesman were allowed to make a binding contract of such a nature with a plaintiff of doubtful responsibility, no manufacturing corporation could long survive such a practice.
Plaintiff further contends that even if the paper of August twenty-eighth did not constitute a contract, the defendant’s reply of August thirtieth constitutes an acceptance of the order. In the postal card'of August thirtieth the defendant notified the plaintiff that the order was received “ and will have our best attention.” It would hardly seem to need authority for the proposition that this communication did not constitute an acceptance of the order. The acceptance of an order requires consideration, not only of the terms of the order but of the responsibility of the party to whom credit is given. The only obligation expressed in that communication was the obligation to give prompt consideration, for the purpose of ultimately determining whether or not the order should be accepted. A precisely parallel question arose in the case of Manier & Co. v. Appling (112 Ala. 663). In that case the defendants had received an order to which it was responded : “ The same shall have prompt attention.” It was there held that this response could in no sense be deemed an acceptance of the order, and the conclusion is there sustained with convincing reasoning.
If these conclusions be correct it is unnecessary to consider the claimed error on the part of the trial court in refusing to allow evidence to show that the agent Schlegel had no authority to make a binding contract, or the claim of the plaintiff that the form of the card which the agent presented was a representation by the company that he had such authority. ISTor is it necessary to consider whether the damages proved were properly allowed by the trial court over the objection of the defendant that 'they had not been pleaded. These questions are immaterial, if as we view it the defendant has never obligated itself to furnish the cider press to the plaintiff under
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.
