Radiocoin Co. v. Luria Steel & Trading Corp.

267 A.D. 515, 46 N.Y.S.2d 625, 1944 N.Y. App. Div. LEXIS 4765

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 1944
• Status: Published

Opinions

TJntermyer, J.

The plaintiff has recovered judgment in the Municipal Court, affirmed by the Appellate Term, for damages for the breach by the defendant of a contract to deliver a quantity of stainless steel spring wire. It is alleged in the complaint ‘ ‘ that on or about October 18,1940, plaintiff and defendant entered into a contract in writing whereby it was mutually agreed that the defendant should sell to the plaintiff, and the plaintiff should purchase from the defendant 1,500 pounds of 0.4 mm. Stainless Steel Spring Wire, of an agreed analysis, at the agreed price of $43.43 per 100 pounds less 2%% commission.” In the answer these allegations are denied.

The plaintiff’s evidence establishes that following a telephone conversation between representatives of. the parties oh September 16,1940, the defendant wrote to the plaintiff a letter in which it offered to sell 2,240 pounds of 0.4 millimeter stainless steel spring wire at a price of $43.43 per 100 pounds f.o.b. mill with freight allowed to New York City. It was further stated that this price “ includes a 2y2% commission on the mill value for your account.” The testimony reveals, however, that the 2 y2% “ commission ’’was, in fact, in the nature of a discount commonly allowed on purchases for export, the wire having been purchased by the plaintiff for resale to a customer in China.

Following a second telephone conversation, in which it was stated by the defendant’s representative that the terms contained in the defendant’s letter of September 16, 1940, were still open for acceptance, the plaintiff transmitted to the defendant a written order, dated October 18, 1940, for 1,500 pounds of 0.4 millimeter stainless steel spring wire at the price of $43.43 per 100 pounds. That order, in addition to the 2y2% “ commission ” previously referred to, provided also for “ customary cash discount ” and at the foot, after the word “ Important ” printed in bold type, contained the following printed provision: “ As goods on this order is [sic] purchased for export, it is agreed that inspection is not required here, and Breach of Warranty is not waived, until a reasonable time after inspection by the Foreign customer.”

Even disregarding other discrepancies between the offer contained in the defendant’s letter of September 16, 1940, and the plaintiff’s order of October 18th, the requirement of “ customary cash discount ” and the provision deferring inspection until delivery of the merchandise by -the plaintiff to its customer in China are fatal to the cause of action. The evidence does not disclose that either of these new terms, which constituted material deviations from the offer, was accepted by the defendant. Not only was the provision for “ customary cash discount ” a variation of the defendant’s offer, which, if enforced, would exact from the defendant a reduction in price to which it had never agreed, but the provision which would have deferred inspection and notice of breach of warranty until examination of the merchandise by the plaintiff’s customer in China would have the effect of relieving the plaintiff from obligations otherwise implied by law. (Personal Property Law, art. 5, § 130; Sorenson v. Keesey Hosiery Co., 244 N. Y. 73; Atwater & Co. v. Panama R. R. Co., 255 N. Y. 496.) The plaintiff’s attempt to impose these terms on the defendant’s offer precluded any meeting of the minds of the parties and renders impossible the enforcement against the defendant of a contract to which it did not assent.

It is true that the defendant subsequently repudiated the alleged agreement on the ground that the price of 0.4 millimeter stainless steel spring wire had been quoted in the belief that it referred to less expensive 4.0 millimeter wire, but that did not create a meeting of the minds where none had existed before. As the court observed in a similar case: ‘1 There was no contract because, as has been shown, the plaintiffs did not accept the counter offer of the defendant expressed in its letter of April 6th. That being so, this letter from the defendant some months later disavowing the authority of the salesman who sent the order cannot supply the omission of the plaintiffs to accept the offer which the defendant’s salesman made.” (Poel v. Brunwick-Balke-Collender Co., 216 N. Y. 310, p. 323.)

The determination of the Appellate Term and the judgment of the Municipal Court should be reversed and the complaint dismissed, with costs to the defendant-appellant in all courts.