William W. Van Keuren, Respondent, v. Boomer & Boschert Press Company, Appellant

William W. Van Keuren, Respondent, v. Boomer & Boschert Press Company, Appellant. Third Department, March 8, 1911. Contract — order for goods—when not binding on vendor — acceptance. A paper whereby one wishing to purchase a cider press “authorized and requested ” the manufacturer to ship him the desired machinery, and agreed to pay a certain price therefor, which is signed by the prospective purchaser, is simply an order subject to acceptance by the manufacturer, and the fact that after the words “sold by” at the bottom of the paper the manufacturer’s salesman signed his name does not change it into a contract binding on the manufacturer. A postal card sent by the manufacturer to the purchaser, upon receipt of the order, which read, “Your order * * * received, * * * and will have our best attention,” does not constitute an acceptance of the order so as to make him liable to the purchaser for a refusal to ship the goods on the terms specified in the order. Appeal by the defendant, the Boomer & Boschert Press Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 37th day of February, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of March, 1909, denying the defendant’s motion for a new trial made upon the minutes. Upon August 24, 1905, plaintiff requested defendant to send one of its agents to give him a price on its cider press and- also information as to the press. In that communication he stated that he would like it by the fifteenth of September. On August twenty-eighth one George H. Schlegel went to the plaintiff at Kingston and presented to the plaintiff a card which contained the defendant’s address at Syracuse, and upon the bottom of the card was printed “ Represented by Geo. H. Schlegel, Salesman.” At that time negotiations were had between plaintiff and said Schlegel, which resulted in a paper, of which the following is a copy. This paper was upon a blank form and the words written in are in italic the words not in italic being printed on the paper as part of the form: “ Dated at Kingston “ $484.79-100. this £8 day of August, 1906. “ Boomer & Boschert Press Co., “ Syracuse, N, Y.: “ Through Geo. H. Sehlegel your salesman, Reading, Pa., yon are hereby authorized and requested to SHIP to me at Kingston Station, County of Ulster, State of New York, soon as possible, the ......day of Sept. 1905; 1 No. 1-lp screw press, steel beam; 1 reversibleplatform ; 18 racks and form/ 16 cloth, medium ; 1 elevator ; 1 large grater with fast and loose pulley ; sxopporting frame and canvas chute; {1 bbl. gage free), which- I agree to promptly receive and pay the freight; I also agree to pay Four Hundred and Eighty-four 79-100 Dollars for said goods as follows : To be paid cash soon as press set up, and run and making cider, payable at Kingston National Bank. “ And it is agreed by the undersigned that the title to said property shall remain in you until it is fully paid for, and in default' of the payments as agreed, or of any other condition of this agreement to be performed, you or your agent may, with or without process of law, take possession of and remove said property and collect reasonable charges for damages and expenses. “Sold by Geo. H. Schlegel. Name W. W. Van Keuren, “ P. 0. Address, Kingston, N. Y Upon August thirtieth defendant sent to the plaintiff a postal card, a copy of which is here inserted, the words in italic being written in, the remaining words printed thereupon : “ Boomer & Bosohert Press Co., “ Syracuse, N. Y. Aug. 30, 1905. “ Dear Sir.— Your order of Aug. W, for Press, etc., received through Mr. JVm. A. Lawrence, and will have our best attention. “ Thanking you, we are “ Very truly yours, " " “BOOMER & BOSOHERT PRESS CO.” Thereafter defendant refused to furnish the press except upon an advanced payment and upon other terms than those specified in the paper signed by the plaintiff, with which conditions the plaintiff refused to comply. This action is brought to recover damages claimed to have been suffered by the plaintiff by reason of the defendant’s refusal to deliver the press in accordance with the paper signed by plaintiff and claimed by the plaintiff to constitute a contract between the parties. The Trial Term submitted to the jury the question as to whether the papers constituted a contract for the plaintiff for $250 damages. From the judgment entered upon this verdict and from an order denying defendant’s motion for a new trial the defendant here appeals. Edwin Nottingham, for the appellant. William D. Brinnier, for the respondent. [MAJORITY — Smith, P. J.:] Smith, P. J.: I am unable to find any legal contract by the defendant to deliver to the plaintiff the cider press under the terms stated in the paper of the twenty-eighth of August. It seems to me clear that that paper was simply an order for the press subject to acceptance by the defendant at Syracuse and does not purport to be a contract by which the defendant agreed to deliver the press upon the terms therein written. The paper is addressed to the defendant at Syracuse. It “ authorized and requested ” the defendant to ship to the plaintiff this cider press upon the terms named. So far the paper does not purport to state any contract, but is an unequivocal order, which is subject to acceptance thereafter by the defendant. Defendant claims, however, that the whole purport of the paper is changed from an order into a contract by the words in the lower left-hand corner “ Sold by Geo. IT. Schlegel.” The words “ Sold by ” as there used are part of the printed form. It is inconceivable that the defendant intended by this single line to change the whole legal import of the paper from what without it would be a distinctive order into a binding contract. It seems to me the undoubted significance of that phrase is simply to designate the salesman who negotiated the order for the defendant’s purposes only. The paper does not purport to be signed by the defendant nor by any one in its behalf, and whatever significance would otherwise be attached to the words “ Sold by ” as there used is completely controlled by the rest o£ the paper, which constitutes simply an order without any binding obligation on the defendant’s behalf. And this construction accords with commercial usage. Ordinary salesmen are not usually given authority to make, binding contracts. The contract in question illustrates the danger of such authority. The cider press was not to be paid for until the press was set up and making cider. If an ordinary salesman were allowed to make a binding contract of such a nature with a plaintiff of doubtful responsibility, no manufacturing corporation could long survive such a practice. Plaintiff further contends that even if the paper of August twenty-eighth did not constitute a contract, the defendant’s reply of August thirtieth constitutes an acceptance of the order. In the postal card'of August thirtieth the defendant notified the plaintiff that the order was received “ and will have our best attention.” It would hardly seem to need authority for the proposition that this communication did not constitute an acceptance of the order. The acceptance of an order requires consideration, not only of the terms of the order but of the responsibility of the party to whom credit is given. The only obligation expressed in that communication was the obligation to give prompt consideration, for the purpose of ultimately determining whether or not the order should be accepted. A precisely parallel question arose in the case of Manier & Co. v. Appling (112 Ala. 663). In that case the defendants had received an order to which it was responded : “ The same shall have prompt attention.” It was there held that this response could in no sense be deemed an acceptance of the order, and the conclusion is there sustained with convincing reasoning. If these conclusions be correct it is unnecessary to consider the claimed error on the part of the trial court in refusing to allow evidence to show that the agent Schlegel had no authority to make a binding contract, or the claim of the plaintiff that the form of the card which the agent presented was a representation by the company that he had such authority. ISTor is it necessary to consider whether the damages proved were properly allowed by the trial court over the objection of the defendant that 'they had not been pleaded. These questions are immaterial, if as we view it the defendant has never obligated itself to furnish the cider press to the plaintiff under any conditions. The judgment and order must, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event.