It is apparent from the correspondence, that the rate to be charged per passenger by the plaintiff was largely dependent on the number to be carried; that both parties so understood it, and that the negotiations between them were conducted on that basis. This being the understanding, the plaintiff's agent wrote to defendant's agent as follows:
"March 31st, 1888.
"G.W. KEELER, Esq., General Eastern Agent, Mexican Central Ry. Co. (Ltd.), New York:
"DEAR SIR — Referring to your favor of the 31st inst., and conversations had with you by our representative, Mr. Martin, regarding transportation of Mexican pilgrims from New York to Rome and return, by our S.S. `Bolivia,' to sail from this port for Naples about the 16 proximo, and to return from that port about thirty days after their arrival there, we beg to confirm the understanding arrived at between us, viz.: That you will ship not less than 75 first class, 75 second class and 100 third class passengers for the round trip, for which we agree to furnish transportation from New York to Rome and return, at the following rates: For first class, *Page 27 one hundred and forty dollars; second class, ninety dollars, and third class, fifty dollars, subject to a commission of 5 per cent, and further, we agree to furnish five free passages to Rome and return, and five first-class passages to Naples and return to New York, for one hundred dollars each, and we promise to endeavor to secure free transportation for these five people from Naples to Rome and return; and we further promise that if we can see our way to reduce the steerage or third-class rate, by reason of any concessions in rail fares, which we may procure from the Italian Ry. Co., that we will do so. We also understand that prior to the sailing of the steamer, one-half of the passage money for the round trip will be paid to us. Please confirm this, and much oblige,
"Yours truly, "HENDERSON BROTHERS."
It is said that the following language amounts to a proposition only: "We beg to confirm the understanding arrived at betweenus, viz.: That you will ship not less than 75 first class, 75 second class and one hundred third class passengers for the round trip, for which we agree to furnish transportation from New York to Rome and return, at the following rates." I think it is more than a proposition. It asserts the existence of an understanding arrived at between the parties, by letters "and conversations." If the defendant did not concede the existence of the understanding, it was its duty to have denied it. (Gibney v.Marchay, 34 N.Y. 301-305; Whart. Ev. § 1136; Green. Ev. § 197et seq.) It is now in the same position as though it had stood by and heard the other party assert that a material fact existed and had failed to deny it. After having contracted with the plaintiff without denying the truth of the assertion of the existence of this material fact, the defendant cannot now say that the assertion was untrue. But if it be assumed that there is no evidence of a previous understanding as to the number of passengers to be furnished by the defendant, and that the plaintiff's letter of March thirty-first amounted to a proposition only, the result *Page 28 is not changed. The plaintiff's proposition was an entire one and the acceptance not being qualified or limited in its terms, should be held to be an acceptance of the proposal as made. I think the correspondence shows that the rates per passenger were agreed to upon the understanding that not less than 250 were to be furnished. It cannot be said that had the defendant offered fifty or 100 passengers, the plaintiff could have been required to carry them at the rates named. I think the Supreme Court correctly construed the contract, and that its judgment should be affirmed, with costs.
All concur with BRADLEY, J., except FOLLETT, Ch. J., PARKER and LANDON, JJ., dissenting.
Judgment reversed.