Opinion
February 12, 1925.
Lesser Lesser [ Harry Lesser of counsel], for the appellant.
Wilber, Norman Kahn [ Hugart F. Norman of counsel], for the respondent.
Defendant, a wholesale dealer in poultry, located in the city of New York, sent a circular letter to the trade, dated November 28, 1922, in which he explained that he would like to receive a trial shipment from the addressees, gave the range of market prices for that day, and concluded with reference as to his standing. Plaintiff in Nebraska received one of these letters and thereupon made up a shipment of some 800 pounds of fresh killed turkeys which he sent to defendant with a draft attached to the express receipt. The shipment was made on December 11, 1922, and the draft is so dated. The merchandise reached New York about the sixteenth of December and on that day was accepted by defendant who signed the express receipt noting the fact that the turkeys were in bad condition. They were sold at the then market price for poultry in that condition — which was a small proportion of the amount of the draft, and the draft when presented was dishonored.
Upon this state of facts plaintiff claims that a contract of sale was entered into on December eleventh at the prices quoted in the circular. The learned trial court interpreted the circular letter as an offer to buy at the prices mentioned. There is no indication, however, that the price quoted as the day's market price on November twenty-eighth was intended to continue as the basis of a purchase, and even if it were so construed, the price is only given in approximate figures, which are too indefinite. The circular indicates that a purchase took place in New York on December sixteenth, the date of delivery, at the current market price of that day in New York.
Construing the circular in the light of subdivision 1 of section 127 and rule 5 of section 100 of the Personal Property Law, we think that it was the intention of the parties that title should pass in New York and the risk of damage to the goods in transit was primarily upon the plaintiff. Since the latter did not challenge the accuracy of defendant's testimony in regard to the market price here on December sixteenth, there was no basis for a judgment in his favor except for $102.24, which had been tendered into court by defendant as the amount for which the goods were sold.
Judgment modified by reducing it to the sum of $102.24, with interest and costs, and as so modified affirmed, with $25 costs to appellant; costs of appeal to be set off against the judgment.
All concur; present, BIJUR, MULLAN and COTILLO, JJ.