Johnson-Brown Company on March 16, 1920, sued Williams upon a written contract, alleging that on October 6, 1919, the plaintiff contracted with the defendant to purchase a certain quantity of a commodity at a stipulated price, and alleging a breach of the contract by the defendant, to the damage of the *188'plaintiff. The evidence showed, that on the date alleged an agent of the plaintiff negotiated the alleged contract with the defendant; that the contract was drawn in duplicate, both copies being signed by the defendant and by the agent for his principal, that the agent stated to the defendant at the time of the execution of the instrument that the alleged contract would have to be sent to his principal for confirmation; that for this purpose the agent retained and forwarded to his principal both the original and duplicate copies of the instrument; that at the time of the execution of the alleged contract the agent delivered to the defendant a draft on his principal for a certain sum of money, and represented to the defendant that it was a part of the purchase-price to bind the trade; that the draft was presented by the defendant and paid by the plaintiff on October 18, 1919; and that the plaintiff received both copies of the contract from the agent, but never communicated any confirmation thereof to the defendant. There was also evidence to the effect that on October 25, 1919, before any acceptance of the defendant’s offer by the plaintiff, or any confirmation by the principal of the alleged contract forwarded to it by the agent, the defendant withdrew his promise to deliver the commodity, and tendered back to the principal the amount of money represented by the draft, which tender was refused by the plaintiff. The testimony of the defendant was in part as follows: ifHe [the agent] said that he would have to send both original and the duplicate to Albany to «Johnson-Brown Company [the principal] for their confirmation. lie said that he did not doubt but that they would confirm-it, but his instructions were for it to go to them for their confirmation. After that he took both copies of the contract, and I don’t know where he sent them. I never heard from them and T never saw [the agent] any more. They did not mail me that duplicate. They did not confirm the contract to me. . . Under the arrangement I had with Mr. Parrish [the agent] this contract was not to be binding before it was confirmed by the company and a copy returned to me. I had a clear understanding to that effect, -and Mr. Parrish so understood it and told me so.” The agent of the principal testified in part as follows: “I did not undertake to close the trade that afternoon. I told him that I would send them [the contract] to Albany to Mr. Brown [the principal] for him to confirm them.”
*189It is not necessary to add anything further to the headnotes.
Judgment reversed.
Jenkins, P. J., and Hill, J., concur.