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and even long storage of the freight until cars can be furnished, nevertheless it takes on the character of a common carrier the moment the property is delivered and received by it for immediate transportation. It can make no difference whether the railroad company was to place this bay in its cars, or whether the shippers were to do that work. Whoever was to load the hay into the cars, it was delivered and received for immediate shipment, not for storage, not to be kept for the shippers, and not subject to their control, and it was not in their custody. It was simply left in the freighthouse of the railroad company until it could furnish cars for its transportation. It was there for immediate shipment, with nothing more to be done than to place it in the cars, and whether that work was to be done by the railroad company or by the shippers can make no difference in reason or principle. If, however, in such a case the delay in the shipment is caused by some fault of the shippers, if they are not ready to place the freight in the cars when they are furnished, and thus shipment is delayed until the property, without the fault of the carrier, is destroyed, the loss would then fall upon the shippers, because it was due to their default.

In this case, at the time of the fire, the property was stored for the convenience of the carrier, and not for the convenience of the shippers, and its destruction was due to its default, and in no way to any default on their part.

We, therefore, see no reason to doubt that this recovery was right, and that the judgment should be affirmed, with costs.

All concur (PECKHAM and BARTLETT, JJ., in result), except O'BRIEN, J., taking no part.

Judgment affirmed.

CARRIERS-WHEN LIABILITY Beging—DELIVERY TO.- Delivery to and acceptance by a carrier are essential to make him liable for goods, but acceptance may be either actual or constructive: Merriam v. Hartford etc. R. R. Co., 20 Conn. 354; 52 Am. Dec. 344, and note. Delivery of goods to a carrier by leaving them on the dock near his boat, according to the usual custom, will not render him liable unless accompanied by express notice: Packard v. Getman, 6 Cow. 757; 16 Am. Dec. 475, and note. Delivery of goods to a servant or duly authorized agent of a carrier, who is in the habit of receiving such goods in the ordinary scope of his employment, is a sufficient delivery to make the carrier responsible for their loss: Minter v. Pacific R. R., 41 Mo. 503; 97 Am. Dec. 288, and note. For a further discussion of this subject see the notes to Illinois Cent. R. R. Co. v. Smyser, 87 Am. Dec. 304; Merriam v. Hartford etc. R. R. Co., 52 Am. Dec. 349; Governor v. Withers, 50 Am. Dec. 99, and the extended note to Campbell v. City of Stillwater, 50 Am. Rep. 571.

SANDERS v. PotTLITZER Bros. Fruit COMPANY.

(144 NEW YORK, 209.) CONTRACT, WHEN PERFECT THOUGH THE PARTIES CONTEMPLATE ITS BEING

REDUCED to A MORE FORMAL WRITING.-If the correspondence and telegrams between the parties contain all the details of a contract it is enforceable though they intended that their agreement should be for. mally expressed in a single paper, which, when signed, should be the evidence of what already had been agreed upon. Neither party has the right to insist that such agreement should contain terms not stated in the correspondence and telegrams, and if he does so insist and refuses to sign the agreement or perform the contract without such additional terms, he is answerable for the dainages sustained by his withdrawal

from his contract. A CONTRACT TO MAKE AND EXECUTE A CERTAIN WRITTEN AGREEMENT, the

terms of which are mutually understood and agreed upon, is in all respects as valid and obligatory, where no statutory objection interposes, as the written contract itself would be if executed. Neither party is at liberty to refuse to perform or to enter into the agreement as stipulated. Eugene M. Bartlett, for the appellants. George W. Daggett, for the respondent.

310 O'BRIEN, J. The plaintiffs in this action sought to recover damages for the breach of a contract for the sale and delivery of a quantity of apples. The complaint was dismissed by the referee and his judgment was affirmed upon appeal. The only question to be considered is whether the contract stated in the complaint, as the basis for damages, was ever in fact made so as to become binding upon the parties. On the 28th of October, 1891, the plaintiffs submitted to the defendant the following proposition in writing:

“BUFFALO, N. Y., Oct. 28, 1891. “Messrs. Pottlitzer Bros. Fruit Co., Lafayette, Ind.,

“GENTLEMEN: We offer you ten carloads of apples to be from 175 to 200 barrels per car, put up in good order, from stock inspected by your Mr. Leo Pottlitzer at Nunda and Silver Springs. The apples not to exceed one-half green fruit, balance red fruit, to be shipped as follows:

“First car between 1st and 15th December, 1891.

"Second car between 15th and 30th December, 1891, and one car each ten days after January 1, 1892, until all are shipped. Dates above specified to be considered as approximate a few days either way, at the price of $2.00 per barrel, free on board cars at Silver Springs and Nunda, in refrigera

tor cars, this proposition to be accepted not later 211 than the 31st inst., and you to pay us $500 upon acceptance of the proposition, to be deducted from the purchase price of apples at the rate of $100 per car on the last five cars.

" Yours respectfully,

J. SANDERS & Son." To this proposition the defendant replied by telegraph on October 31st as follows:

" LAFAYETTE, IND., 31st October. “ J. SANDERS & Son: We accept your proposition on apples, provided you will change it to read car every eight days from January first, none in December; wire acceptance.

“ POTTLITZER BROS. FRUIT Co." the same day the plaintiffs replied to this dispatch to the effect that they could not accept the modification proposed, but must insist upon the original offer. On the same day the defendant answered the plaintiff's telegram as follows:

“Can only accept condition as stated in last message. Only way we can accept. Answer if accepted. Mail contract and we will then forward draft. POTTLITZER BROS. Fruit Co."

The matter thus rested till November 4th, when the plaintiff's received the following letter from the defendant:

“LAFAYETTE, IND., November 2, 1891. “ J. Sanders & Son, Stafford, N. Y.,

"GENTS: We are in receipt of your telegrams, also your favor of the 31st ult. While we no doubt think we have offered you a fair contract on apples, still the dictator of this has learned on bis return home that there are so many near-by apples coming into market that it will affect the sale of apples in December, and, therefore, we do not think it advisable to take the contract anless you made it read for shipment from the 1st of January. We are very sorry you cannot do this, but perhaps we will be able to take some fruit from you, as we will need it in the spring. If you can change the contract 21% so as to read as we wired you we will accept it and forward you draft in payment on same.

POTTLITZER FRUIT Co." On receipt of this letter the plaintiffs sent the following message to the defendant by telegraph:

“ November 4th. “POTTLITZER BROTHERS FRUIT COMPANY, LAFAYETTE, IND.: Letter received. Will accept conditions. If satisfactory, answer and will forward contract. J. SANDERS & Son."

The defendant replied to this message by telegraph, saying: “ All right; send contract as stated in our message.” The plaintiffs did prepare and send on the contract precisely in the terms embraced in the foregoing correspondence, which was the original proposition made by the plaintiffs, as modi. fied by defendant's telegram above set forth, and which was acceded to by the plaintiffs. This was not satisfactory to the defendant, and it returned it to the plaintiffs with certain modifications, which were not referred to in the correspondence. These modifications were: 1. That the fruit should be well protected from 'frost and well hayed; 2. That if, in the judgment of the plaintiffs, it was necessary or prudent that the cars should be fired through, the plaintiffs should furnish the stoves for the purpose, and the defendant pay the expense of the man to be employed in looking after the fires to be kept in the cars; 3. That the plaintiffs should line the cars in which the fruit was shipped. These conditions were more burdensome and rendered the contract less profitable to the plaintiffs. They were not expressed in the correspondence and I think cannot be implied. They were not assented to by the plaintiffs, and on their declining to incorporate them in the paper the defendant treated the negotiations as at an end, and notified the plaintiffs that it had placed its order with other parties. There was some further correspond ence, but it is not material to the question presented by the appeal. The writings and telegrams that passed between the parties 213 contain all the elements of a complete contract. Nothing was wanting in the plaintiffs' original proposition, but the defendant's assent to it in order to constitute a contract binding upon both parties according to its terms. This assent was given upon condition that a certain specified modification was accepted. The plaintiffs finally assented to the modification, and called upon the defendant to signify its assent again to the whole arrangement as thus modified, and it replied that it was “all right," which must be taken as conclusive evidence that the minds of the parties had met and agreed upon certain specified and distinct obligations which were to be observed by both. It is true, as found by the learned referee, that the parties intended that the agreement should be formally expressed in a single paper, which, when signed, should be the evidence of what had already been agreed upon. But neither party was entitled to insert in the paper any material condition not referred to in the cor

respondence, and if it was inserted without the consent of the other party it was unauthorized. Hence the defendant, by insisting upon further material conditions not expressed or implied in the correspondence, defeated the intention to reduce the agreement to the form of a single paper signed by both parties. The plaintiffs then had the right to fall back upon their written proposition as originally made and the subsequent letters and telegrams, and, if they constituted a contract of themselves, the absence of the formal agreement contemplated was not under the circumstances material. When the parties intend that a mere verbal agreement shall be finally reduced to writing as the evidence of the terms of the contract, it may be true that nothing is binding upon either party until the writing is executed.

But here the contract was already in writing, and it was none the less obligatory upon both parties because they intended that it should be put into another form, especially when their intention is made impossible by the act of one or the other of the parties by insisting upon the insertion of conditions and provisions not contemplated or embraced in 214 the correspondence: Vassar v. Camp, 11 N. Y. 441; Brown v. Norton, 50 Hun, 248; Pratt v. Hudson Riv. R. R. Co., 21 N. Y. 308. The principle that governs in such cases was clearly stated by Judge Selden in the case last cited in these words: "A contract to make and execute a certain written agreement, the terms of which are mutually understood and agreed upon, is, in all respects, as valid and obligatory, where no statutory objection interposes, as the written contract itself would be, if executed. If, therefore, it should appear that the minds of the parties had met, that a proposition for a contract had been made by one party and accepted by the other, that the terms of this contract were in all respects definitely understood and agreed upon, and that a part of the mutual understanding was that a written contract, embodying these terms, should be drawn and executed by the respective parties, this is an obligatory contract, which neither party is at liberty to refuse to perform."

In this case it is apparent that the minds of the parties met through the correspondence upon all the terms as well as the subject matter of the contract, and that the subsequent failure to reduce this contract to the precise form intended, for the reason stated, did not affect the obligations of either party, which had already attached, and they may now resort

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