H. T. Kellogg, Acting P. J.:
The complaint alleges that prior to September, 1919, the plaintiff manufactured shirts for Cluett, Peabody & Co., Inc.; that in all matters relating to such manufacture the defendant acted as the agent of Cluett, Peabody & Co., Inc.; that the defendant was at all times a director of that company; that prior to September, 1919, the plaintiff notified Cluett, Peabody & Co., Inc., that it would discontinue to manufacture shirts for it; that the plaintiff had at this time an opportunity to manufacture shirts for another corporation on better terms; that on September 20, J.919, at the
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office of the plaintiff, defendant requested the plaintiff to continue its manufacture of shirts for Cluett, Peabody & Co., Inc.; that plaintiff agreed so to continue if a satisfactory arrangement could be made with that corporation; that upon such day it wrote Cluett, Peabody & Co., Inc., that it would continue to manufacture shirts upon terms set forth in its letter of that date. The complaint then proceeds with the following allegation:
“ That about ten days thereafter the above named defendant came to the office of the plaintiff at Glens Falls, N. Y., and with intent to deceive and defraud the plaintiff, falsely and fraudulently represented to the plaintiff that the offer of the plaintiff as set forth in its letter of September 20, 1919, had been accepted by Cluett, Peabody & Co., Inc., and stated that said Cluett, Peabody & Co., Inc., had written to the plaintiff accepting the offer according to its terms, and that the letter was in the possession of the defendant, but that through an oversight he had left it on a desk in his office at Troy, N. Y., instead of bringing it to Glens Falls for delivery to the plaintiff.” The complaint further alleges that the plaintiff believed the representations to be true; that it was thereby induced to refuse other contracts for the manufacture of shirts; that the representations were false and known by the defendant to be false; that Cluett, Peabody & Co., Inc., had not written to the plaintiff accepting its terms as stated by the defendant; that Cluett, Peabody & Co., Inc., thereafter refused to receive shirts manufactured by the plaintiff; that the plaintiff was damaged by the deceit of the defendant in the sum of $25,000. The complaint demanded judgment against the defendant for the sum of $25,000. The defendant made a motion at Special Term for an order dismissing the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. The motion was denied, and from the order denying the motion this appeal was taken.
The alleged representation that the offer of the plaintiff, as contained in its letter of September 20, 1919, “ had been accepted by Cluett, Peabody & Co., Inc.,” must be considered in the light of the further alleged representation, contained in the same sentence, “ that said Cluett, Peabody & Co., Inc., had written to the plaintiff accepting the offer.” Evidently the only represented “ acceptance ” intended to be alleged was an “ acceptance ” by the writing in question, for, if the writing was one “ accepting ” the offer, there could have been no previous “ acceptance.” It is elementary that an offer is not accepted until a communication of acceptance is made or mailed to the offeror and that until such time there is no contract. The writing of “ acceptance ” was represented, under the express allegations of the complaint, to have been in the
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possession of the defendant, a director and agent of Cluett, Peabody & Co., Inc., and, therefore, in the possession of that company, at the very moment when the alleged representations were made. Consequently, a legal acceptance of the offer of the plaintiff was never represented. The plaintiff could not have been induced to believe, therefore, by any misrepresentation of the defendant, that it had a contract with Cluett, Peabody & Co., Inc., for the manufacture and sale to it of shirts. It could justly have believed that Cluett, Peabody
& Co., Inc., had
determined to accept its offer and, at the moment of the representation,
intended to contract with the plaintiff. No representation which induced the plaintiff so to believe was other than a representation of
expectations. It was in no sense a representation as to a material existing fact. Therefore, the complaint did not state a cause of action.
The order should be reversed, with costs, and the complaint dismissed, with costs.
Hasbrouck, J., concurs; Hinman, J., concurs with an opinion; Van Kirk, J., dissents with an opinion in which Kiley, J., concurs.