Treat v. Ullman — 69 N.Y.S. 974

Majority

p. 974

(34 Misc. Rep. 553.)

TREAT v. ULLMAN et al.

(Supreme Court, Appellate Term.

April 16, 1901.)

Headnote

Sales—Contract—Acceptance.

Plaintiff’s assignor wrote defendants relative to the latter’s selling certain clothing, and stating what he would take. Defendants requested' shipment, saying that they would, no doubt, obtain a satisfactory price. The clothing was forwarded, with another letter, which requested defendants to do the best they could. Held that, as the clothing was forwarded pursuant to defendants’ letter, plaintiff’s assignor must he deemed to' have waived the original terms offered, and plaintiff could not recover thereon.

Appeal- from municipal court, borough of Manhattan, Tenth district.

Action by Clerihew B. Treat against Lewis Ullman and another.. From a judgment in favor of defendants, plaintiff appeals.

Affirmed.

Argued before BISCHOFF, P. J., and CLABKE and LEVEN-TBITT, JJ.

Bichard Curd Daniel, for appellant.

Arthur Furber, for' respondents.

The judgment below should be affirmed, as no contract was entered into between the defendants and the plaintiff’s assignor. On February 3, 1900, the latter writes to the defendants as-to whether they could sell for him a lot of shop-worn children’s suits, saying: “They ought to net us $2.00, but, rather than not sell them, would take 10fo less.” In reply to this, the defendants wrote: “Would advise you to ship the children’s suits by express on receipt of ■this, and we will place them in this week’s special sale, and we will no doubt obtain satisfactory prices.” The suits were forwarded together, with a letter which read: 'We have this day sent you by N. Y. & B. Ex. 165 suits, as we received yours in reply to ours of February 3d. Please do the best you can, and oblige,” etc. It is clear from the foregoing that the tentative terms of the plaintiff’s assignor were not accepted. The defendants had “no doubt” they could obtain “satisfactory prices,” but did not bind themselves to realize 10 per cent, less .than two dollars. The plaintiff’s assignor forwarded the suits on the strength of the defendants’ letter, and must be deemed to have waived their original terms by expressing a willingness to' abide by the best terms the defendants could get. In any event, there-was no meeting of the minds of the parties on the first proposition, submitted.

Judgment affirmed, with costs.