Guerney Heater Manufacturing Co. v. Woods

Jenkins, P. J. 1. In order for a contract to be effected by correspondence, there must be a mutual assent of the parties by an absolute offer and an unconditional acceptance thereof. Whether or not, where the acceptance of an offer has not been absolute but conditional only, a subsequent elimination of the condition would create a contract, where at the same time a new and independent condition is simultaneously engrafted, it is unnecessary in the instant case to decide, since the elimination of the original condition was here effected only by the interposition of the ancillary condition. Thus, where an offer for the purchase of a commodity is accepted, “providing credit arrangements are satisfactory,” and the vendor, after such conditional acceptance and prior to any shipment of the goods, approves the order, freed of the condition as to the approval of credit, save that it is required that the goods shall be ordered out “within 4 months from date,” no unconditional acceptance of the original offer is shown. 2. The suit in this case being based and dependent upon the validity of an alleged original contract of purchase and sale, stripped of any condition relative to the time in which the goods should be ordered out, and it appearing from the undisputed documentary evidence that the only [261] acceptance of the offer was based upon the condition that credit arrangements would be satisfactory, and it further appearing that, prior to ' any shipment of the goods, the credit arrangements of the vendee were approved with the expressed condition attached to the acceptance that the goods must be ordered out within four months, the verdict in favor of the plaintiff (the purchaser) was contrary to law, as being without evidence to support it. Decided August 21, 1925. 3. In view of these rulings, it is unnecessary to determine the merits of the special exceptions taken to the charge of the court, or whether, in the form in which the exceptions were made, they could -properly be considered. Judgment reversed. Stephens and Bell, JJ., concur. W. 0. Little, Henry 0. Farr, for plaintiff in error. Krauss & Strong, contra.