Opinion
June, 1897.
Thos. J. Ritch, for appellant.
Frederick E. Anderson (Wilder Anderson, of counsel), for respondents.
The exceptions urged for reversal are without merit and the judgments of the court below should be affirmed.
The appellant bases its claim of error in the recovery, which proceeded against objection upon oral evidence of an agreement by the appellant to accept return of part of a number of electric lamps supplied to the respondents and to refund an equal proportion of the aggregate price paid, upon the untenable assumption that that correspondence between the parties immediately preceding the installation of the lamps constituted an agreement, to which class of written instruments, only, the rule inhibiting the introduction of oral evidence tending to contradict, add to, or vary the terms, applies. This proposition is elementary. Greenleaf on Ev., § 276; Underhill on Ev., § 205; 2 Jones on Ev., § 437; Brown on Parol Ev., § 13; Benjamin on Sales, § 323, and note. All the cases cited by counsel for the appellant are in harmony therewith.
The correspondence alluded to consisted of two letters, the first, from the appellant to the respondents, pursuant to which the former offered to install the lamps upon terms specified; and the second from the respondents to the appellant, whereby the respondents acceded to the terms proposed, but conditionally only, to-wit: "with the proviso that if the lamps are not satisfactory" the appellant would further "agree to remove them free of charge," and supply a "written contract from the Edison Company to furnish carbons free of charge, and to send a man each day to trim lamps," and secure a "certificate from the board of fire underwriters." No acceptance, in writing, by the appellant, of the conditions imposed by the respondents, anywhere appeared. The constituent of an agreement, therefore, the aggregatio mentium, or mutual assent of the parties, was not apparent (White v. Corlies, 46 N.Y. 467) from the writing before the court.
"The acceptance of an offer must be absolute and unqualified, for until there is such an acceptance the negotiations of the parties amount to nothing more than proposals and counter-proposals." 3 Am. Eng. Ency. of Law, 852. Quite to the contrary, it did appear from the writing that the minds of the parties had not met.
Judgments of the General and Trial Terms of the court below affirmed, with costs.
DALY, P.J., and McADAM, J., concur.
Judgments affirmed, with costs.