Opinion
March 11, 1952.
Present — Peck, P.J., Glennon, Callahan, Van Voorhis and Shientag, JJ.
Defendant appeals from an order denying its motion for summary judgment on the first cause of action. The complaint, in three causes of action, charges the defendant with liability predicated upon its cable of August 27, 1948. The first cause of action is based upon an alleged contractual obligation undertaken by the cable, and the second and third causes of action are based upon the alleged falsity of representations made in the cable and negligence of the defendant in making the representations. Although the first cause of action alleges that the cable was an acceptance of plaintiff's offer to purchase wheat on specified conditions, the position taken by plaintiff in opposition to the motion for summary judgment was that the cable was a guarantee of the performance of the seller, one Atkinson. In any event, the complaint and papers on the motion make it clear that the cause of action is based upon the undertaking of the cable, and we must look to the cable to determine what, if anything, was undertaken. It is certainly clear upon the face of the cable that the defendant was not undertaking any role of seller and did not contract to make a sale of wheat. It is equally clear that the defendant did not undertake to make the guarantee which plaintiff requested and only purported to state a commitment which it had received from a milling company. Whether any misrepresentations were made and whether defendant was negligent in its representations are matters involved in the second and third causes of action, which are not before us. We are only called upon to determine whether the defendant undertook the obligations of a seller or of guarantor for a seller, and that question must be determined upon the face of the document upon which plaintiff relies. Finding that no such obligations were undertaken, the order appealed from is unanimously reversed, with $20 costs and disbursements to the appellant, and the motion for summary judgment granted. Settle order on notice.