Moss v. Granville

FINCH, J. The action is for damages for breach of an executory contract to sell an interest in a business. The answer denies the contract, and whether there was a valid contract is the question for decision. The contract, if there be any, is contained in the following telegrams: ‘‘Cincinnati, O., June 12, 1915. “Bernard Granville, 154 W. 45th Str. N. Y. City. I will sell out for my investment and you assume all debts. Alcan Moss.” “New York, June 12, 1915. “Alcan Moss; Hotel Sinton, Cinti, O. As you have broken your agreement I have boon compelled to carry the business with my own money rather than [454] see it a failure. When I am capable of giving you what I think is due you, I shall do so as per your telegraph of the 12th inst., 1915, of acceptance. This telegram cancels all agreements made between you and me. “Bernard Granville.” For the purposes of the trial of the action, the respective parties stipulated, among other things, as follows: “(3) The parties hereto further admit that the plaintiff’s investment in said business on the 12th day of June, 1915, consisted of the following items: (1) Cash advanced directly to said Lang as agent and manager aforesaid, for the immediate purposes of the said business..........$699.88 (2) Attorney’s fees paid for the preparation of the proposed Bernard Granville Publishing Company, Inc., and services rendered in connection with the proposed organization of said company----$ 50.00 Disbursements for telegrams received and sent by plaintiff..........$ 37.08 “(4) The parties hereto further admit that the possession and control of said business has ever since the 12th day of June, 1915, been vested in the defendant. “(5) The defendant admits that he has not paid plaintiff anything on account of the alleged claim of the plaintiff herein. “(6) The parties hereto admit that no verbal agreement or conversation with reference to the allegations contained in paragraph V of the complaint took place between the plaintiff and the defendant, or any of their agents or representatives, and that the said alleged agreement, if it exists, is contained in the annexed Exhibits A to T, inclusive.” It will be noted that the telegram from the defendant to the plaintiff says: “When I am capable of giving you what I think is due you, I shall do so as per your telegraph of the 12th inst., 1915, of acceptance.” Even if it might be held, in accordance with the opinion of the trial court, that the words “when I am capable” mean within a reasonable time (and it is extremely doubtful if these words would lend themselves to that construction), it will be noted that the amount also is to be left to the decision of the defendant, namely, “what I think is due you.” Apparently the defendant was under the impression that the telegram of June 12th by the plaintiff to him constituted an acceptance of previous propositions; but it cannot be construed other than as an offer, and the acceptance, if any, must be contained in the telegram from the defendant on the same day. A reading of the telegrams immediately preceding and subsequent show the contract, if any, was contained in the two telegrams set forth above. - “It seems to be well settled that if one party makes to another an offer by letter, and the offer is of a character which implies nothing to be done by the latter except to assent or decline, and he by letter accepts, adding no qualifi cation, condition, or reservation, there is a mutual consent, and a contract is created by such letters. But, even where there is an acceptance, if it is not of the exact thing offered, or if it is accompanied by any conditions or reservations, however slight, then no contract is made, and the proposition to accept with such modifications is a rejection of the offer.” Sidney Glass Works v. Barnes & Co., 86 Hun, 374, 33 N. Y. Supp. 508. The language quoted applies to the present case. The acceptance did not meet the offer in two particulars, namely, “when I am capable of giving you what I think is due you.” (Italics not in original.) To [455] the same effect, see also Kirwan et al. v. Byrne, 6 Misc. Rep. 528, 27 N. Y. Supp. 143; Marschall et al. v. Eisen Vineyard Co., 7 Misc. Rep. 674, 28 N. Y. Supp. 62. Judgment reversed, with costs, and complaint dismissed, with costs. BIJUR, J., concurs.