Davidge v. Velie — 160 N.Y.S. 820

Majority

p. 820

(95 Misc. Rep. 511)

DAVIDGE v. VELIE et al.

(Ulster County Court.

May, 1916.)

Headnote

1. Sales @=23(2, 3)—Opees—Acceptance—Revocation.

A written order, signed by defendant, for the purchase of fertilizer, which was nothing more than a mere offer, is not binding on plaintiff, the seller, until acceptance, which may be evidenced by act or agreement, and until acceptance defendants may revoke the order.

[Ed. Note.—For other eases, see Sales, Cent. Dig. §§ 45, 46; Dec. Dig. @=23(2, 3).]

2. Evidence @=411—Pabol Evidence Rule—Admissibility.

A written order for fertilizer, which was nothing more than a mere offer, not good until acceptance by the seller, shows on its face that it is not a complete contract, and paroi evidence is admissible to show that it was agreed between the parties that defendants might countermand the order before a fixed time.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1874-1899; Dec. Dig. @=411.]

@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Justice Court.

Action by William M. Davidge, doing business as the Hudson Carbon Company, against William Y. Velie and Fred Velie, copartners doing business as Velie Bros. From a judgment in Justice Court for plaintiff, defendants appeal. Reversed.

Alexander Johnston, of Marlboro (V. B. Van Wagonen, of Kingston, of counsel), for appellants.

A. D. & A. W. Bent, of Highland, for respondent.

On October 6, 1914, a paper, of which the following is a copy, was signed by one of the defendants and delivered to the plaintiff;

“Hudson Carbon Co.,

“Order ......, Date....... 191..

Oct. 6, 1914,

“Ship to Velie Bros.

“At P. O. Marlboro, N. V.

“How ship, Cedarcliff, N. V. When, Mch. 1st.

“Terms, Net cash f. o. b., Cedarcliff, N. T.

“Salesman...... Buyer.........

If needed earlier will advise.

“20 bags, 1 ton

Davidge’s Special Phosphorus,

§40.00

“Velie Bros.

“Less freight.”

On February 12, 1915, the plaintiff delivered this fertilizer to the Delaware & Hudson Railroad Company at Ballston Spa, for shipment, and in due course it arrived at Cedarcliff, before February 22d, when the defendants wrote the plaintiff that they had just received word of the shipment of February 12th, of one ton Davidge’s special phosphorus and that they had on February 18th written asking them to cancel the

p. 821

order for March 1st, that they gave this order with the understanding that they could so do, and that they would not take it from the freight house.

[1, 2] The plaintiff sued to recover the purchase price. The defendants claimed nonperformance by delivery before the time fixed in the order, and that the writing above set forth did not contain the entire agreement. Upon the trial the defendants’ offer of proof that it was agreed that the order for March delivery could be canceled by defendants any time before March 1st was rejected upon the ground that the writing contained a complete contract and paroi evidence was not admissible to modify its terms. I think this was error. The contract was not complete on its face. There was no acceptance of the order in the writing, nothing to bind the plaintiff so as to make a complete executory contract. It was an offer, and, to make a complete contract, an acceptance by act or promise by the plaintiff was necessary. The writing might have been shown to' be part only of an entire verbal contract. If this instrument can be said to contain a contract, this case falls in the second class of exceptions set forth in the opinion in Thomas v. Scutt, 127 N. Y. 133 , 27 N. E. 961 , to the rule that a complete written contract cannot be modified or contradicted by pa.rol evidence. Judge Vann says:

“The second class embraces those cases which recognize the written instru*ment as existing and valid, but regard it as incomplete, either obviously, or at least possibly, and admit paroi evidence, not to contradict or vary, but to complete the entire agreement ol’ which the writing was only a part. * * * Two tilings, however, are essential to bring a case within this class: (1) The writing must not appear upon inspection to be a complete contract, embracing all the particulars necessary to make a perfect agreement and designed to express the whole arrangement between the parties, for in such a case it is conclusively presumed to embrace the entire contract. (2) The paroi evidence must be consistent with and not contradictory of the written instrument.”

The written instrument here is nothing more than an offer by the defendants to purchase fertilizer, fixing price, quality, quantity, time, and place of delivery. No acceptance binding the plaintiff can be found within the four corners of the paper. It may be that soliciting the order and manual acceptance of the paper would warrant the inference of its acceptance, but that must be shown by evidence outside the paper. I think the defendants should have been allowed their proof showing an entire executory contract of an order for goods to be delivered March 1st, with a right to cancel before the date of delivery.

Regarding the instrument as an offer, where is the acceptance necessary to make a complete contract? Was the shipment of February 12th such an acceptance ? I think not, because the act did not square with the offer. The offer was for a shipment on March 1st, and that is not complied with by a shipment February 12th. Corrigan v. Sheffield, 10 Hun, 227 .

Again, if the instrument was only an offer, the defendants had a right to withdraw it before acceptance by the plaintiff. This they did by notifying the plaintiff a reasonable time before March 1st.

For these reasons, the judgment is reversed, with costs.

Judgment reversed, with costs.

Cases cited

Thomas v. Scutt 127 N. Y. 133 N.Y. 1891-06-02 p. 821