American Woolen Co. v. Moskowitz

Appellate Terms of the Supreme Court of New York

American Woolen Co. v. Moskowitz

140 N.Y.S. 522

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 7, 1913

StatusPublished

This text of 140 N.Y.S. 522 (American Woolen Co. v. Moskowitz) 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

American Woolen Co. v. Moskowitz, 140 N.Y.S. 522 (N.Y. Ct. App. 1913).

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Opinion

BIJUR, J.

The question presented by this appeal is whether a guaranty, signed by defendant, plaintiff’s Exhibit A, dated March 4, 1907, and on that day transmitted to plaintiff, was accepted by it, or whether it was impliedly rejected by plaintiff’s act in forwarding on the following day to defendants a letter reading, “We are inclosing a form of guaranty which kindly sign and witness by a notary and return to us.” The form inclosed was rather elaborate, being some 20 or 30 times longer than the original guaranty and contained additional provisions. Defendants did not execute this paper. Plaintiff’s credit man testified:

“I had already received this paper marked Exhibit A before I sent the letter marked Exhibit I." We received this guaranty of March 4th and then, ■as we preferred to have the other, we simply sent that other on.”

At the close of the case, both sides moved for, the direction, and the learned court thereupon directed a verdict for the plaintiff.

[1] On familiar principles it seems to me to be clear that the minds of the parties have never met. Defendants’ offer of a guaranty was not-accepted, but a counter proposition made, which in turn, was not accepted by defendants.. See Sidney - Glass Works v. Barnes, 86 Hun, 374, 33 N. Y. Supp. 508; Kamber v. Rosen (Sup.) 98 N. Y. Supp. 839; Nundy v. Matthews, 34 Hun, 74.

[2] I think, also, that the learned trial judge erred in not admitting into evidence the form of guaranty inclosed in plaintiff’s letter, Exhibit I: First, because it was part of the letter itself, by reference; .and next, because its contents were necessary to enable a determina[524]*524tion of the significance of plaintiff’s act in writing Exhibit I. Since, however, it was marked for identification, and was contained in the record, we have' considered the merits of the controversy as presented by that instrument in connection with the other evidence.

This case presents a situation where judgment absolute should be given for defendants.-

Judgment reversed, with costs, and judgment -directed for the defendants, with costs.- All concur.

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BIJUR, J.

The question presented by this appeal is whether a guaranty, signed by defendant, plaintiff’s Exhibit A, dated March 4, 1907, and on that day transmitted to plaintiff, was accepted by it, or whether it was impliedly rejected by plaintiff’s act in forwarding on the following day to defendants a letter reading, “We are inclosing a form of guaranty which kindly sign and witness by a notary and return to us.” The form inclosed was rather elaborate, being some 20 or 30 times longer than the original guaranty and contained additional provisions. Defendants did not execute this paper. Plaintiff’s credit man testified:

“I had already received this paper marked Exhibit A before I sent the letter marked Exhibit I." We received this guaranty of March 4th and then, ■as we preferred to have the other, we simply sent that other on.”

At the close of the case, both sides moved for, the direction, and the learned court thereupon directed a verdict for the plaintiff.

[1] On familiar principles it seems to me to be clear that the minds of the parties have never met. Defendants’ offer of a guaranty was not-accepted, but a counter proposition made, which in turn, was not accepted by defendants.. See Sidney - Glass Works v. Barnes, 86 Hun, 374, 33 N. Y. Supp. 508; Kamber v. Rosen (Sup.) 98 N. Y. Supp. 839; Nundy v. Matthews, 34 Hun, 74.

[2] I think, also, that the learned trial judge erred in not admitting into evidence the form of guaranty inclosed in plaintiff’s letter, Exhibit I: First, because it was part of the letter itself, by reference; .and next, because its contents were necessary to enable a determina[524]*524tion of the significance of plaintiff’s act in writing Exhibit I. Since, however, it was marked for identification, and was contained in the record, we have' considered the merits of the controversy as presented by that instrument in connection with the other evidence.

This case presents a situation where judgment absolute should be given for defendants.-

Judgment reversed, with costs, and judgment -directed for the defendants, with costs.- All concur.

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