Acme Wood Carpet Flooring Co. v. Broadway & Fifty-Third St. Co.

Appellate Terms of the Supreme Court of New York

Acme Wood Carpet Flooring Co. v. Broadway & Fifty-Third St. Co.

142 N.Y.S. 490

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 24, 1913

StatusPublished

This text of 142 N.Y.S. 490 (Acme Wood Carpet Flooring Co. v. Broadway & Fifty-Third St. Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Acme Wood Carpet Flooring Co. v. Broadway & Fifty-Third St. Co., 142 N.Y.S. 490 (N.Y. Ct. App. 1913).

Pincite

Opinion

PAGE, J.

This action was to recover damages for breach of an alleged executory contract. . On or about July 14, 1912, the following documenf was' prepared upon the letter heading of the plaintiff:

“Broadway & 53d St. Co., 215 West 51 St., City. '

“We take pleasure in submitting herewith our figure for furnishing parquet floors, building #215 West 51 St., City, 1696-1698 Broadioay, N. T. 0., and agree to execute the work as specified below: Furnish and lay parquet floors of 12"x12”x3/8'' plain white oak squares laid diagonally with line borders, scraped and finished with three coats of the best white shellac for the sum of $.14 per sq. ft.

“Furnish new oalc saddles at 50$ each.

“[Signed] Broadway <6 58rd St. Oo., '

“L. Selznilo, Pres’t.”

The document, except the portions in italics, was in typewriting, the portion italicized was in handwriting.

[1] The supposed duplicate copy that was delivered to the defendant by the plaintiff did not have “1696-1698 Broadway, N. Y. C.,” in [491]*491it at all. In the copy produced by plaintiff these words were conced•edly written by Max Wiesner, plaintiff’s manager. The defendant ■claims that these words were not in when the copy was signed; but as Mr. Selznilc was not produced as a witness, nor his absence accounted •„ for, there is no proof, only argumentative statements, to offset Mr. Wiesner’s positive evidence that these words were in the document. Although there are many circumstances that would render it probable that the added words were not a part of the instrument, the attention of the jury was directed to them, and we shall treat their verdict as settling the fact that the instrument to be considered is the plaintiff’s ■exhibit.

[2] We are of opinion, however, that it is insufficient to sustain the cause of action. It is entirely unilateral. There is no agreement on the defendant’s part to pay the price named; there is no specification of the amount of work to be done. It undoubtedly would constitute a good contract for any floors that the plaintiff did lay at the instance ■of the defendant, not at the contract price of 14 cents per square foot, but at the rate of 15 cents per square foot, showing inferentially that plaintiff did not consider himself bound even to that extent. For such floors, however, as have been laid the plaintiff has been paid. Defendant was not bound to allow plaintiff to lay all the floors of the 23 .apartments.

The judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

Free access — add to your briefcase to read the full text and ask questions with AI

PAGE, J.

This action was to recover damages for breach of an alleged executory contract. . On or about July 14, 1912, the following documenf was' prepared upon the letter heading of the plaintiff:

“Broadway & 53d St. Co., 215 West 51 St., City. '

“We take pleasure in submitting herewith our figure for furnishing parquet floors, building #215 West 51 St., City, 1696-1698 Broadioay, N. T. 0., and agree to execute the work as specified below: Furnish and lay parquet floors of 12"x12”x3/8'' plain white oak squares laid diagonally with line borders, scraped and finished with three coats of the best white shellac for the sum of $.14 per sq. ft.

“Furnish new oalc saddles at 50$ each.

“[Signed] Broadway <6 58rd St. Oo., '

“L. Selznilo, Pres’t.”

The document, except the portions in italics, was in typewriting, the portion italicized was in handwriting.

[1] The supposed duplicate copy that was delivered to the defendant by the plaintiff did not have “1696-1698 Broadway, N. Y. C.,” in [491]*491it at all. In the copy produced by plaintiff these words were conced•edly written by Max Wiesner, plaintiff’s manager. The defendant ■claims that these words were not in when the copy was signed; but as Mr. Selznilc was not produced as a witness, nor his absence accounted •„ for, there is no proof, only argumentative statements, to offset Mr. Wiesner’s positive evidence that these words were in the document. Although there are many circumstances that would render it probable that the added words were not a part of the instrument, the attention of the jury was directed to them, and we shall treat their verdict as settling the fact that the instrument to be considered is the plaintiff’s ■exhibit.

[2] We are of opinion, however, that it is insufficient to sustain the cause of action. It is entirely unilateral. There is no agreement on the defendant’s part to pay the price named; there is no specification of the amount of work to be done. It undoubtedly would constitute a good contract for any floors that the plaintiff did lay at the instance ■of the defendant, not at the contract price of 14 cents per square foot, but at the rate of 15 cents per square foot, showing inferentially that plaintiff did not consider himself bound even to that extent. For such floors, however, as have been laid the plaintiff has been paid. Defendant was not bound to allow plaintiff to lay all the floors of the 23 .apartments.

The judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

Cite This Page — Counsel Stack

Bluebook (online)

142 N.Y.S. 490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acme-wood-carpet-flooring-co-v-broadway-fifty-third-st-co-nyappterm-1913.