Engineer Co. v. Herring-Hall-Marvin Safe Co.

Headnote

Engineer Co. v. Herring-Hall-Marvin Safe Co., 158 App. Div. 913 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department,

entered October 29, 1913, affirming a judgment in favor of plaintiff entered upon a verdict. The action was brought to recover damages for breach of an alleged contract signed by the parties in April, 1908, whereby the plaintiff offered to install a balanced draft system in the boiler plant of the defendant’s factory. This offer was accepted on April 30, 1908, in connection with a letter Written on the same day, which contained the following provisions: “lam signing this contract, however, with the distinct understanding, as provided in our conversation with your Secretary, Mr. R. E. Fox, Jr., that this work is not to be started in any way, shape or manner, until you are directed so to do by us. This means that you are to incur no obligation in the way of preparation of materials for the installation until such time as I advise you. We are not prepared at the present time to have your system installed and will not be until I give you further notice. I also sign with the understanding that there may be some change in the question of terms, which will be subject to our mutual agreement. If the contract signed under these conditions is satisfactory to you, will you kindly note same by approving one of the copies attached and mailing it to me. ” To these conditions the plaintiff assented. The defendant never directed the plaintiff to install the machinery, and the jury found that in October, 1911, the defendant notified the plaintiff that it never intended to require the performance of the contract by the plaintiff.