Sanders v. Pottlitzer Bros.' Fruit Co.

• Decision Date: 18 December 1894
• Citation: 39 N.E. 75,144 N.Y. 209
• Parties: SANDERS et al. v. POTTLITZER BROS.' FRUIT CO.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 209

39 N.E. 75

SANDERS et al.

v.POTTLITZER BROS.' FRUIT CO.

Court of Appeals of New York.

Dec. 18, 1894.

Appeal from supreme court, general term, Fifth department.

Action by Archie D. Sanders and others against Pottlitzer Bros.' Fruit Company for damages for breach of a contract of sale. From a judgment of the general term (25 N. Y. Supp. 257) affirming a judgment in favor of defendant, plaintiffs appeal. Reversed.

Earl, Gray, and Bartlett, JJ., dissenting.

Eugene M. Bartlett, for appellants.

George W. Daggett, for respondent.

O'BRIEN, J.

The plaintiffs in this action sought to recover damages for the breach of a contract for the sale and delivery of a quantity of apples. The complaint was dismissed by the referee, and his judgment was affirmed upon appeal. The only question to be considered is whether the contract stated in the complaint, as the basis for damages, was ever in fact made, so as to become binding upon the parties. On the 28th of October, 1891, the plaintiffs submitted to the defendant the following proposition in writing: ‘Buffalo, N. Y., Oct. 28, 1891. Messrs. Pottlitzer Bros. Fruit Co., Lafayette, Ind.-Gentlemen: We offer you ten car loads of apples, to be from 175 to 200 barrels per car, put up in good order, from stock inspected by your Mr. Leo Pottlitzer at Nunda and Silver Springs. The apples not to exceed one-half green fruit, balance red fruit, to be shipped as follows: First car between 1st and 15th December, 1891; second car between 15th and 30th December, 1891; and one car each ten days after January 1, 1892, until all are shipped. Dates above specified to be considered as approximate a few days either way, at the price of $2.00 per barrel, free on board cars at Silver Springs and Nunda, in refrigerator cars; this proposition to be accepted not later than the 31st inst., and you to pay us $500 upon acceptance of the proposition, to be deducted from the purchase price of apples at the rate of $100 per car on the last five cars. Yours respectfully, J. Sanders & Son.’ To this proposition the defendant replied by telegraph on October 31st as follows: ‘Lafayette, Ind., 31st October. J. Sanders & Son: We accept your proposition on apples, provided you will change it to read car every eight days from January first, none in December; wire acceptance. Pottlitzer Bros.’ Fruit Co.' On the same day the plaintiffs replied to this dispatch, to the effect that they could not accept the modification proposed, but must insist upon the original offer. On the same day the defendant answered the plaintiffs' telegram as follows: ‘Can only accept condition as stated in last message. Only way we can accept. Answer if accepted. Mail contract, and we will then forward draft. Pottlitzer Bros.’ Fruit Co.' The matter thus rested till November 4th, when the plaintiffs received the following letter from the defendant: ‘Lafayette, Ind., November 2, 1891. J. Sanders & Son, Stafford, N. Y.-Gents: We are in receipt of your telegrams, also your favor of the 31st ult. While we no doubt think we have offered you a fair contract on apples, still the dictator of this has learned on his return home that there are so many near-by apples coming into market that it will affect the sale of apples in December, and therefore we do not think it advisable to take the contract, unless you made it read for shipment from the 1st of January. We are very sorry you cannot do this, but perhaps we will be able to take some fruit from you, as we will need it in the spring. If you can change the contract so as to read as we wired you, we will accept it, and forward you draft in payment on same. Pottlitzer Fruit Co.’ On receipt of this letter the plaintiffs sent the following message to the defendant by telegraph: ‘November 4th. Pottlitzer Brothers Fruit Company, Lafayette, Ind.: Letter received. Will accept conditions. If satisfactory, answer, and will forward contract. J. Sanders & Son.’ The defendant replied to this message by telegraph, saying: ‘All right. Send contract as stated in our message.’

The plaintiffs did prepare and send on the contract precisely in the terms embraced in the foregoing correspondence, which was the original proposition made by the plaintiffs, as modified by defendant's telegram above set forth, and which was acceded to by the plaintiffs. This was not satisfactory to the defendant, and it returned it to the plaintiffs with certain modifications, which were not referred to in the correspondence. These modifications were: (1) That the fruit should be well protected from frost and well hayed; (2) that if, in the judgment of the plaintiffs, it was necessary or prudent that the cars should be fired through, the plaintiffs should furnish the stoves for the purpose, and the defendant pay the expense of the man to be employed in looking after the fires to be kept in the cars; (3) that the plaintiffs should line the cars in which the fruit was shipped. These conditions were more burdensome, and rendered the contract less profitable to the plaintiffs. They were not expressed in the correspondence, and, I think, cannot be implied. They were not assented to by the plaintiffs, and on their declining to incorporate them in the paper the defendant treated the negotiations as at an end, and notified the plaintiffs that it had placed its order with other parties. There was some further correspondence, but it is not material to the question presented by the appeal. The writings and telegrams that passed between the parties contain all the elements of a complete contract. Nothing was wanting in the plaintiffs' original proposition but the defendant's assent to it, in order to constitute a contract binding upon both parties according to its terms. This assent was given upon condition that a certain specified modification was...