O'Neill v. . James

Rapallo, J. The memorandum signed by the defendant under date of July 24, 1865, whereby he extended to the plaintiff the privilege of taking 5,000 barrels of cement in addition to the 5,000 agreed upon theretofore, and upon the same terms and conditions, was in substance an offer on the part of the defendant to sell to the plaintiff the additional 5,000 barrels on the same terms and conditions as those upon which the first lot was sold, thus giving the plaintiff the option to increase his purchase to 1.0,000 barrels. The defendant’s letter of September 9, 1865, in which he says to the plaintiff: “You may enter my order for the acceptance of your offer (till October, 1st, time given to conclude on) for the 10,000 barrels of cement, to commence from date of first lot to Brooklyn,” was a sufficient acceptance of the defendant’s offer. The words “ till October, 1st, time given to conclude on,” indicate an understanding on the part of the defendant, that he had been given until October 1st, to conclude whether or not he would avail himself of the privilege. They do not detract from the force of the accep *91 tance, or indicate that the matter was to be left any longer in suspense. They simply amount to a reminder that the acceptance is sent within the time given. Upon the acceptance of the offer, a valid contract arose, binding upon both parties. The position assumed by -the defendant, that this acceptance was merely an expression of willingness on the part of the plaintiff to have the privilege of taking the cement, and did not bind him to take it, is wholly untenable. It was the exercise of the privilege itself. The motion'for a nonsuit on the ground that no contract had been proved, was, therefore, properly denied. The second ground of motion for a nonsuit was, that there was no proof of a demand by the plaintiff, within the time contemplated by the contract. The agreement as to time was contained in the letters, which constitute the contract for the first 5,000 barrels. The plaintiff, by his letter of July 12, 1865, agreed that he would take them all, on or before the lláW-Woveubsr. The defendant, by his reply of July, 13th, agreed to furnish them between then and the 1st of November. They were to be delivered in lots of about 400 barrels each, every week or two a lot. The second 5,000 barrels were sold on the same terms, and conditions as the first. But the agreement for the second 5,000 barrels not having been perfected by the acceptance of the order, until September 9, 1865, it is evident that they could not all be delivered without either increasing the lots, or enlarging the time. The evidence further showed, that during the running of the contract, various lots, which might have been delivered under the contract, were by mutual consent delivered to other parties, thus further increasing the time required, and it appeared in the defendant’s evidence, that in some instances these diversions were made at his request. It also appeared that the last delivery was made on the 2d of November. These facts are sufficient to show that time was not regarded as material, and was waived. *92 But further, the defendant had until the 1st of November to complete the delivery. So long as he made the weekly deliveries, the plaintiff had no right to demand more until the expiration of the stipulated time. If the defendant desired to foreclose the plaintiff from demanding a delivery after that time, he should have tendered the number of barrels remaining undelivered. No such tender was made. The motion for a nonsuit on the ground of a want of demand, before the 1st of November, was properly denied. The request to charge the jury as to the effect of accepting a privilege, witho'ut becoming bound to take, was a purely hypothetical and abstract proposition, which could have no application to this case, and was properly refused. The offer and the acceptance were both in writing ; there could be no dispute therefore as to the language used, and whether or not it constituted a valid contract was a question of law, and was properly decided by the court. The second request to charge was also properly refused:-' The court was called upon to instruct the jury as matter of law, that as to the lots which had been by mutual consent and for mutual accommodation disposed of by the defendant, instead of being delivered under the contract, the defendant was discharged. There was nothing in the nature of the transaction which would justify such a conclusion. It is not pretended that the plaintiff refused to take these lots. In some instances, it wras more convenient for him not to take them at the particular time, and the defendant disposed of them elsewhere. In other cases, it was not convenient for the defendant to deliver them at the time, and the plaintiff consented to yield his claim to an immediate delivery: Nothing but a postponement of the deliveries seems to have been contemplated. The defendant on the trial did not even ask to have the' question submitted to the jury, as to what was intended; but, treating the question as one of law, claimed a positive instruction, and the court rightly refused to give such instruction. *93 The only remaining exception is, to the ruling of the court that there was no question to be submitted to the jury, except the question of damages. It is difficult to find any other question of fact in the case, proper to have been submitted to the jury ; but if there were, the defendant was bound to call the attention of the court to it. The defendant rested his defence upon the grounds, that there was no contract, no demand within the time stipulated for delivery, and that the defendant was discharged as to certain lots of the cement in question; and he called upon the court to rule upon these matters as questions of law arising upon undisputed facts. In such a case, if the defendant desired to raise any further question, and submit it to the jury, he was bound to specify it, in order to render his exception available. ( Winchell v. Hicks, 18 N. Y., 558; Mallory v. Tioga R. R. Co., 5 Abb. N. S., 420; Seymour v. Cowing, 1 Keyes., 582; Jencks v. Smith, 1 Comst., 92.) The judgment should be affirmed, with costs. All the judges concurring, judgment affirmed. .