Majority
p. 42(174 App. Div. 923) HAYMAN et al. v. CANTON ART METAL CO. (Supreme Court, Appellate Division, Fourth Department. July 6, 1916.) Argued before KRUSE, P. J., and FOOTE, LAMBERT, MERRELL, and DE ANGELIS, JJ.
Headnote
Saies ®^»22(2)—Offer and Acceptance—Withdrawal.Where an offer to sell required its acceptance to be accompanied by a certified check, and the offer was withdrawn before the check was mailed, there was no contract.
[Ed. Note.—For other cases, see Sales, Cent. Dig. § 40; Dec. Dig. <§= 22(2).]
Appeal from Trial Term, Erie County.
Action by Oscar M. Hayman and others against the Canton Art Metal Company. From a judgment for plaintiffs, and an order denying its motion for a new trial, defendant appeals.- Reversed and remanded, with directions.
Willard W. S'aperston and Saperston & McNaughtan, all of Buffalo, for appellant.
■ Vernon Cole and Shire & Jellinek, all of Buffalo, for respondents.
Defendant’s telegraphic offer to sell required its acceptance to be accompanied by certified check for $1,000. Defendant’s offer was withdrawn before plaintiffs had made their acceptance complete by mailing to defendant the required check. This we think defendant had the right to do and that there was no completed contract of sale. Defendant’s motion for a nonsuit should have been granted.
The judgment and order should be reversed, and judgment directed in favor of defendant, dismissing plaintiffs’ complaint, with costs to defendant in this court and in the court below.