(dissenting):
I am constrained to differ with my brethren in this case. In my judgment a prima, facie case of a completed agreement in prmsenti was made out. There was at least sufficient proof to go to the jury upon the question of a present completed agreement. It will not do to pick out a single phrase in Tanenbaum’s narration and conclusively predicate thereon a mere inchoate agreement for a lease to be executed i/n futuro. It is true that Tanenbaum testified that the plaintiff Arnold, at the close of the crucial interview, said to him: “ If that is the case (referring to some previous observations of Tanenbaum’s recommending the defendant as tenant) you can close the lease.” That expression, however, may have implied, and may well have been understood to mean, “ You can now complete the bargain.” It did not necessarily mean, “ Yon can draw a lease for our final consideration.” At all events, the jury might have looked at it, in connection with Arnold’s preceding language, as importing a present agreement, and might have found that the word “ lease ” was loosely used as a layman’s synonym for “ renting.” As there was a nonsuit, we are bound to place upon the testimony such inferences as are most favorable to the plaintiffs. Arnold’s preceding language was this: “ On that statement (a statement that Tanenbaum could get Arnold another store for $1,800) I will rent the store for $5,000 to the first of February.” Tanenbaum added that Arnold said that “ he would rent it for one year for $5,000. He authorized me to close it then.” Putting it all together, the jury might fairly have inferred—Pad the evidence been submitted to them ■—■ that the formality of an unnecessary written lease was not intended to be a condition precedent to a binding agreement. There was undoubtedly evidence from which the jury might have found that the defendant authorized Tanenbaum to take the plaintiffs’ store for it at $5,000 per annum, payable monthly, and to *574■close the transaction on those terms. Armed with this authority, Tanenbaum induced the plaintiff to agree to let the defendant have the store on such terms, and that, it seems to me, closed the transaction. It was competent for the jury to say that the minds of the parties met, and that the bargain for a year’s renting was then complete. Nor can incompleteness well be predicated of a variation between the defendant’s offer, as an offer for the store, and the plaintiffs’ acceptance, as for the store and basement; for the reason that Tanenbaum immediately notified the defendant by letter that he had closed for the store and basement, and the defendant replied, through A. M. Rothschild, expressing satisfaction. This satisfaction was quite natural, as the defendant thus got more than it had bargained for, not less. It is said that the evidence •of the delivery of this letter from Tanenbaum tó the defendant, and of A. hi. Rothschild’s reply expressing satisfaction, is insufficient. But these letters were introduced in evidence without objection, and the defendant did not, either during the trial, or upon its motion for a nonsuit, question the proof on that head. Its point was that the letters, though proved, did not complete the renting. But, further, the jury might fairly have concluded that the defendant’s letter to Tanenbaum, in which it states that it “ cannot use Arnold’s store,” resulted from the receipt by it of Tanenbaum’s letter and its knowledge of A. M. Rothschild’s reply thereto. It was for the jury to say whether this last letter of its was written to stop an unfinished negotiation, or was an attempt to withdraw from the situation in which its previous note expressive of satisfaction with the bargain had placed it.
Upon all the evidence adduced, I think there was a question for the jury upon the issue of a completed agreement, and that the •complaint should not have been dismissed.
Judgment and order affirmed, with costs.