I find myself quite unable to concur in the opinion of Mr. Justice Ingraham in this case, either as to the conclusions reached or the views expressed, and am impelled to express my reasons therefor.
The facts are very fully stated in the prevailing opinion, and I need not, therefore, discuss at length or in detail the preliminary .steps in the negotiations, which it is claimed resulted, as matter of ' law, in a contract for the alleged breach of which this action is brought. I think it perfectly apparent that it cannot be successfully maintained that the proposal from the defendant of May first, •containing specifications for the work, the letter from defendant of May twenty-ninth following, by which the proposed contract price was reduced from $5,690 to $5,500, and the order or acceptance of the defendant’s said proposal, made by the plaintiff in writing on the latter date, constituted a meeting of the minds of the parties so .as to consummate a contract between them. It will be seen, ji/rst, that the proposal and specifications contain no time of delivery, while the order or acceptance requires delivery and completion within r sixty days; second, it is an acceptance upon condition, viz., “ as per . amended proposition of even date; ” third, the “ amended proposition ” referred to was a written proposition from the plaintiff, dated (May twenty-ninth, the same day as the order, and containing matters • of substance not in any of the previous writings, and substantial ■ changes as to other matters. It required the boilers to be set “ as per drawings and specifications and subject to Architect’s approval,” .a condition not suggested in any previous writing. It changed •wholly the terms of payment as contained in the proposal from the *210defendant in its first communication of May first, and finally provided that the boilers “ be delivered, erected and enclosed in mason work in 60 days from date of order or acceptance.” Manifestly, it requires that this almost wholly new proposition- should be in some form accepted and acceded to by the defendant in order that it may be held to bind them as a contract. What significance shall be attached to the last words of .the amended proposition, “iu 60 days from date of order or acceptance ? ” They can mean but one thing, that if the defendant accepts the new conditions it is to complete the work in sixty days from the date of its acceptance. But if no such words were in the instrument, it does not need argument to show that acceptance of the conditions by the defendant would have to be made in some manner to bind it, and such acceptance and acquiescence would have to be proved by -the plaintiff in order ■ to establish its cause of action. This proposition presents- the bone of contention in the case.
From this time there is no written instrument in evidence by which the defendant accepts these new conditions in terms. Indeed, it claims it never did accept them, and that, therefore, the minds of the parties never met in a consummated agreement. The prevailing opinion seems to hold that the letter from the defendant’s agent dated July sixth, which is fully set out in the opinion, is so inconsistent with the claim that no contract was made; that it shows so conclusively that no other question was open between the parties than that of time of delivery that, taken in connection with the oral testimony, a finding of the jury that any objection was taken to the terms of payment would have been clearly against the weight of evidence. I utterly fail to see the force of this reasoning. As I view it, such reasoning ignores the true situation and shifts the burden of proof unjustly. The plaintiff is here claiming for a breach of an express contract, and the onus is upon it to show that a contract ¿xists, to do which it is necessary for it to show that the conditions imposed by it were accepted by the defendant; not upon the defendant to show that they were rejected. It cannot be said, and is not claimed in- the prevailing opinion, that this letter alone is sufficient to show that the terms were accepted. Whatever else may be said of it, it must be conceded that it makes clear that the time of delivery was in dispute. May we indulge the violent *211presumption — in spite of the direct and irreconcilable conflict in the oral testimony regarding the matter — that because no other question than time of delivery is urged in the letter, the other terms and conditions had been accepted, and thus dispense with proof of such fact ? Unless we may, I can see no way to reach the result arrived at by the trial court and in the opinion delivered here. • It seems clear that plaintiff’s counsel labored under the conviction that he must show that the new terms and conditions imposed by the defendant had been accepted, and he endeavored to do so by oi’al testimony. He called the president of the plaintiff, who testified that the new terms and conditions were talked over and agreed upon between him and the agent of the defendant on the twenty-ninth day of May, before the so-called order and letter containing the amended proposition were written; that the conversation was in the presence of one O’Keefe, and that the letter containing the amended proposition was written in the presence of Thayer, the agent of the defendant. Thayer testified that these two writings were handed to him at the same time; that when he read the letter of acceptance he took some exceptions to the terms of payment, saying that tñey were extraordinary terms and he should have to take it up with his principals before definitely accepting them. Then, in regard to the delivery of the boilers sixty days from date, he said that there might be some delay over that, as that was an extraordinarily quick delivery. O’Keefe, called as a witness for the plaintiff, supported the president, and also testified that the terms of payment contained in the amended proposition were proposed by Thayer himself, and consented to by the president, and were written in the blank either from memorandum furnished by Thayer or from a statement' made by him ; that Thayer never brought up the question of time of delivery until about a. month after the contract was completed. The president, being recalled, testified that Thayer did not tell him that there might be some exception to the terms of payment, nor anything about delay in delivery ; that there was no talk about that on that day, and that Thayer did present a memorandum of the terms of payment, which were these written by him in the letter. Thayer, again called to the stand, testified that he did not present a memorandum of terms other than those written in the original proposal, which plaintiff then had.
*212• How, in the face of this conflict of evidence, it can justly be said, as matter of law, that the minds of these parties met on the twenty-ninth day of May in a consummated contract, I confess myself unable to comprehend. It is asserted that the defendant did not ask to go to the jury upon any question except the one finally submitted by the court, viz., whether the minds of the parties met upon the time of delivery so that a contract was actually completed ; and that, as to this proposition, counsel withdrew his exception to the charge. It Is contended that the defendant made no request to submit to the jury the proposition that if there had been no agreement as to the time of payment there was no valid contract. To this statement I am also unable to agree. As I read the record the counsel insisted upon his right to have all the questions submitted to the jury, and waived nothing, except that the court having submitted the one question of time and delivery to the jury, and having finally instructed upon that point to the satisfaction of counsel, he withdrew an exception he had taken to the charge in that respect.
It appears that having denied a motion to dismiss the complaint, the court said, “ the specifications were modified by the written letters on both sides, which finally (when) crystaliz'ed the contract as to the terms of payment. I cannot let you go to the jury on that issue at all. The letters themselves show that you could not deliver the goods on time, and the only question is whether the time of delivery was of the essence of the contract.” Counsel for defendant said, “ I take an exception to your Honor’s ruling and ask to go to thé jury.” To which the court replied, “ Certainly.” The court then said, “ Counsel is not allowed to sum up on the point as to whether there was a contract or. not. I shall charge the jury that there was a contract. That is a false issue.” To this ruling counsel for defendant duly excepted. The court then proceeded with its charge, in which it did instruct the jury that “ The only dispute in the case, and which I leave you, is whether or not they did agree to do that within sixty days. * * * I charge you that there was a contract made between these parties.” Counsel for defendant duly excepted to the charge that a contract was made, and that the minds of the parties met with regard to the agreement of payment and with regard to the time of delivery. After discussion between counsel and court regarding the meaning of the exception, *213counsel withdrew the- portion of the exception with regard to the question of delivery. What more he could have done to indicate his wish to go to the jury upon the whole question of the consummation of the contract, or how the court could have more clearly decided, as matter of law, that the' minds of the parties did meet in the consummation of a contract, I am unable to see. A perusal of the charge and the statements of the court to counsel clearly show that, in the view entertained by the court, the question of delivery was not an open one, so far as the meeting of the minds of the parties in a contract was concerned, but his query was — was the question of time of the essence of the contract so that a failure to deliver within the time constituted an actionable breach of the agreement ?
It seems to me that the whole question was one of fact, requiring its submission to the jury, and that the refusal so to do was error. It follows that the judgment should he reversed and a new trial granted, with costs to the appellant to abide the event.
Laughlin, J., concurred.
Judgment affirmed, with costs.