Rapp v. Livingston — 13 N.Y. St. Rep. 74

Majority

p. 74

Louis Rapp et al., Resp’ts, v. William Livingston, App’lt.

(New York Common Pleas,

Filed January 3d, 1888.)

Headnote

1. Contract—Offer—Requires acceptance to form a contract.

An offer alone does not constitute a contract; it requires acceptance to perfect it.

‘2. Same—What does not revive offer after rejection.

An offer once rejected is not revived by the party to whom it was made refusing to comply with the demand of the person making the offer, that certain goods accompanying it be returned and his subsequent reception of the price therein named for those goods.

p. 75

Appeal from a judgment rendered in the district court, for the seventh judicial district, in favor of the plaintiff.

I. A. Cantor, for resp’ts; G. O. <& L. L. Hulse, for app’lt.

This action was brought to recover commissions on an alleged sale of merchandise, not by the plaintiffs, but the defendant himself; and the claim is based upon a letter sent to plaintiffs by defendant, dated November 4, 1886, as follows:

“ Gents—I have sold for November shipment 200 cases boiled beef, 12-6, stored at P. J. Dean & Co.’s warehouse, at $3.75 per dozen, subject to examination, and all merchantable, and any imperfect tins to be rejected; also, give you refusal at same price of about 390 cases, less any bad or doubtful tins for six months from date, with the privilege of selling them in the interim allowing you five per cent commissions.”

Inclosed with the letter was an order on P. J. Dean & Co., for 200 cases mentioned in it and bearing even date with the letter.

This letter was a mere offer on defendant’s part to sell, etc., and before it could be binding on both parties, required an acceptance on the part of the plaintiffs. Anderson v. Read, 11 N. Y. State Rep., 123.

Instead of accepting the offer, the plaintiffs, on the 6th of November, 1886, wrote defendant that “unless you are disposed to ship us the 200 cases bought of you November 4, 1886, and allowing at least twenty per cent margin to remain in our hands until the goods are re-examined in Liverpool, we must decline to accept of same in accordance with contract note of November 4, 1886.”

Again, on the 10th of November, plaintiffs wrote defendant that “before accepting of the 200 cases, we wish a letter from you to the following effect, you holding yourself liable to honor any claim within two months after shipment for any imperfection of the said parcel, or leave a margin to cover any just claim,” etc.

On the 11th of November the defendant refused to agree to the proposed modifications, and demanded the return of the order on P. J. Dean & Co.; and also the offer of November 4th.

From this it clearly appears defendant’s offer was never accepted by plaintiffs, and the former withdrew it on the 11th of November. The testimony does not show that afterwards any new offer was made by defendant to plaintiffs, and consequently there is no foundation for plaintiffs’ claim. . The fact that plaintiffs did not return the order on defendant’s demand, but took out of the warehouse the

p. 76

200 cases under it, and that the defendant subsequently received payment for these, does not revive an offer once rejected. At most, it condoned a conversion of his goods by plaintiffs.

The judgment should be reversed and a new trial ordered, with costs to the appellant.