The learned trial court has submitted to the jury the question as to whether or not the acceptance of the sales notes by both parties was complete on April 29, 1920, and has specifically charged that, prior to April 29, 1920, no contract existed, to which no exception was taken. Respondents seek to sustain their judgment upon the theory that the contract was valid and binding upon both parties on April 15, 1920, when the broker forwarded his sales notes to both parties and the negotiations after that date merely related to a modification. Appellant contends that this is contrary to the theory upon which the case was tried and sub-' *659mitted to the jury, and that as the complaint declares upon a written contract and the case was tried and submitted to the jury upon that theory, the question as to whether the paper writings constituted an offer and acceptance was one of law for the court and not one of fact for the jury (Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310), and that as the letter of April 29, 1920, was not an unqualified acceptance of defendant’s offer, no contract was established.
The precise question presented for decision by this appeal relates to whether or not the delivery of the confirmation slips to the broker on April 29, 1920, coupled with plaintiffs’ letter, constituted an unqualified acceptance of the defendant’s offer to go on with the sale on the basis of the terms set forth in the broker’s notes. The law upon this subject is well settled. To establish a legal contract through the medium of correspondence, it must be made to appear that there was not only a plain, unequivocal offer, but that the acceptance of such an offer was equally plain and free from ambiguity. There must have been a meeting of the minds of the contracting parties in respect to every material detail of the contract, and if the precise thing offered was not accepted, or if the acceptance was in any manner qualified by conditions or reservations, no valid contract is made, but such a modified or qualified acceptance must be treated as a rejection of the offer. (Mahar v. Compton, 18 App. Div. 540; Poel v. Brunswick-Balke-Collender Co., supra.)
- Tested by the rule, the paper writings in the case at bar do not present a valid contract. The defendant was not willing to buy for delivery at mill, the plaintiffs were so informed,- but persisted in their letter of April 29, 1920, in attempting to insert such a provision in the contract". This was not an unequivocal acceptance of defendant’s offer to go on with the contract on the basis of the terms of the broker’s sales notes, but on the contrary must be treated as a rejection of the offer.
The judgment and order should be reversed upon the law and the facts, and a new trial granted, with costs to abide the event.
- Kelly, P. J., Manning, Kelby and Young, JJ., concur.
- Judgment and order reversed upon the law and the facts, and a new trial granted, costs to abide the event.