Ballard v. Trow's Printing & Book Publishing Co. , 1 N.Y. City Ct. Rep. 188 ( 1879 )

McAdam, J.

There is no contract unless the parties thereto assent; and they must assent to,the same thing in the same sense ; in other words, the obligation in all its parts must be mutual (1 Parsons on Contracts, 6 ed. 475). Thus, where shingles were sold and delivered at $3.25, but there was a dispute whether the $3.25 was for a bunch or for a thousand, it was held, that unless both parties had understandingly assented to one of these views, there was no special contract as to price (Greene v. Bateman, 2 Woodb. & M. 359). And the same principle was applied to rent agreed to be paid under an oral demise of tenements (Scranton v. Booth, 29 Barb. 171). In the case just cited the parties supposed that they had arrived at an agreement as to the amount of rent to be charged, but it transpired afterwards that they had misunderstood one another, and Judge Welles remarked that “ there was wanting the essential ingredient of an agreement, the coming together and mutual assent of the minds of the parties on the subject of a particular price,” and held that there was consequently no contract as to' price, and the plaintiff was therefore allowed to recover the reasonable rental value of the premises.

Tested by these rules, it is clear that the facts proved fail to establish a contract between the parties as to price. No contract was made when the card was given to the engineer, nor until the defendants sent their written order for the belting. Upon the receipt of this order, and the delivery of the belting thereunder, the contract of sale was completed. No reference up to this time had been made to the card containing the figures 242, nor had any allusion been made to a contract price. If such. a thing had been suggested, the error might and probably would have been detected before the sale was consummated. There being no mutual contract as to price, and no equitable estoppel in regard thereto, it follows that the plaintiffs are entitled to the reasonable value of the belting, which, upon the evidence, is the price set forth in the trade list.

Having arrived at this conclusion, it is unnecessary to pass upon the question of tender, which under this finding was insufficient in amount, whether otherwise good or not.

The plaintiffs are, therefore, entitled to judgment for $130, the reasonable value of the belting, with accrued interest thereon.