The judgment and order appealed from will be reversed, and a new trial ordered, with costs to appellant to abide the event. Order filed. All concur. (189 App. Div. 631) GOODWIN CAR CO. v. AMERICAN STEEL FOUNDRIES. (Supreme Court, Appellate Division, First Department. December 5, 1919.) 1. SALES 88-CONSTRUCTION OF SALE CONTRACT AS TO MATERIAL INCLUDED; JURY QUESTION. Where sale contract was partly oral and partly in writing, whether it was a sale by defendant foundry company of all material on hand at its plant applicable to the construction of plaintiff's dumping cars, or the sale of such material as was shown by an inventory, held for the jury. 2. APPEAL AND ERROR 173(2)—NECESSITY OF RAISING DEFENSE BELOW. In suit to recover money paid under contract on protest, defense that payment was voluntary cannot be made for first time on appeal. • Appeal from Trial Term, New York County. Action by the Goodwin Car Company against the American Steel Foundries. From a judgment entered on a verdict in favor of plaintiff for $32,184.72, and from an order denying defendant's motion to set aside the verdict and to grant a new trial, defendant appeals. Judgment and order reversed, and new trial ordered. Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and PHILBIN, JJ. John Quinn, of New York City (Justus Sheffield, of New York City, on the brief), for appellant. Edwards & Bryan, of New York City (Duncan Edwards, of New York City, of counsel), for respondent. DOWLING, J. The plaintiff is an Illinois corporation engaged in the business of renting and selling certain dumping cars of a special type known as Goodwin cars, used in railroad construction, and adapted to discharge their contents, whether at rest or in motion. They were shaped somewhat like an inverted V, and were unloaded by means of openings on the lower part of the sides of the car, instead of by tilting, as was the case with the other forms of dumping car construction used at the time in question. The plaintiff had contracted with the defendant's predecessor (known as the American Steel Foundry Company) about December 1, 1900, to build certain Goodwin cars for it, and on January 9, 1901, the parties made an agreement for the building of 100 cars for the plaintiff, according to agreed plans and specifications. The defendant, a New Jersey corporation, was organized January 26, 1902, and took over all the business and assets and assumed all the contracts of the American Steel Foundry Company, including the contract for the construction of these 100 cars. The defendant had built 35 of these cars, when certain disputes arose as to the method of payment; the defendant desiring cash, and plaintiff wishing to pay by car trust certificates. As the result of their disagreement, and on August For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (179 N.Y.S.) 4, 1903, the defendant refused to proceed further with the construction of the remaining 65 cars, although it had materials on hand for the construction of the same. This material was on hand at defendant's plant at Granite City, Mo., and besides the material which had been fitted, fabricated, or assembled specially for the Goodwin cars, and applicable to no other type of car, it also had on hand at said premises material of a general character, which could be used, not only in assembling and completing plaintiff's cars, but in cars of any other type and in general construction. The defendant, when it refused to proceed with the completion of the remaining 65 cars, desired to get rid of the material on hand, so far, at least, as it was applicable to Goodwin cars, and therefore, after conversations between the parties, a letter was sent by defendant to plaintiff's then president as follows: "American Steel Foundries, 74 Broadway, Arthur Building. "New York, June 2, 1903. "My Dear Sir: As per our conversation of yesterday, I am sending you herewith sheets 54, 66, 155 to 163, inclusive, and sheet 162-A, which contains complete inventory of the material we have on hand applying on Goodwin cars. "As these sheets have been taken from an inventory of materials at this point, I wish you would return them to me as soon as possible, as they are needed by our accounting department. You may, however, if you so desire, have a copy of same made for your own use. "Yours truly, "Inclosures. J. E. Schwab, President. "To Mr. Edward L. Tilton, President, Goodwin Car Company, 96 Fifth Ave-nue, New York. "Note. As we are using portions of this material from time to time, the list will be subject to slight changes. J. E. S." To this plaintiff replied by the following letters: "June 4, 1903. "J. E. Schwab, Esq., President American Steel Foundries, 74 Broadway, New York City-Dear Sir: We acknowledge with many thanks receipt of your favor of the 2d inst., inclosing complete inventory of the material on hand in Granite City, applying to Goodwin cars. "We shall be very glad to have a copy of the inventory, which we will make and return to you within a day or two. "Yours very truly, "C. J. "W. W. C. Goodwin Car Company, “J. E. Schwab, Esq., President American Steel Foundries, 74 Broadway, New York City-Dear Sir: Referring to your favor of the 2d of June, we return herewith the inventory of the material which you have on hand applying on Goodwin cars, of which we have made copy for file in this office. Thanking you for the accommodation, we remain, "Yours very truly, "C. J. Enc. [Signed] Goodwin Car Company, ........... Supt." There can be no dispute as to what the inventory of the material embraced, for it is included in full in the record, and there is no doubt that what was therein enumerated was material applicable to the construction of the Goodwin cars. The various items had prices affixed, totaling $60,644.19. With this inventory in its possession, and knowing that the defendant was anxious to sell the material shown thereupon, and was also refusing to proceed with the manufacture of the remaining 65 cars, the plaintiff wrote the following letter to the defendant: "July 22, 1903. "Mr. Joseph E. Schwab, Pres., The American Steel Foundries, 74 Broadway, City-Dear Sirs: Under our contract there are still sixty-five (65) cars due us. Will you please advise us as to how soon the same will be completed ready for delivery? Thanking you in advance for an early reply, we remain, Goodwin Car Company, "Yours very truly, President." Interviews took place thereafter between Taylor, president of the plaintiff, and Schwab, president of the defendant; the latter still refusing to complete the contract and inquiring why plaintiff did not buy the material that was on hand. One interview appears to have taken place about August 4, 1903, and during it, or within a short time thereafter, defendant's president said that, unless plaintiff bought the material, it would be sold as scrap to the Illinois Steel Company. Further conversations took place, as the result of which a letter was written by defendant's president to plaintiff's president as follows: "American Steel Foundries, 74 Broadway, Arthur Building. "New York, 12th August, 1903. "My Dear Mr. Taylor: Referring to phone conversation this morning in regard to the balance of material we have on hand, applying on Goodwin cars, at Granite City works, I beg to advise that our inventory of this material taken some time ago and checked up at cost price as noted thereon, amounts to $61,675.28. "In order to dispose of this material, I am willing to make a reduction in price, equaling a total of $45,000 for the entire lot. This you will note is equal to a little more than 25 per cent. reduction. I trust, in view of this liberal reduction in price and the value of the material to your people, you may see your way clear to take this material off our hands. Of course, in case there is any shortage from our inventories, we shall make according reduction to you. "Yours truly, J. E. Schwab, President. "To Mr. William H. Taylor, President Goodwin Car Company, New York City." Further negotiations ensued between the parties, and about September 10th Taylor told Schwab that plaintiff would pay $40,000 for the materials, and Schwab said he would accept it. At this time plaintiff was desirous of getting its remaining cars built, as it had an opportunity of renting either 59 or 69 of them to the O'Rourke Construction Company in connection with the Grand Central Terminal work in New York City, and Taylor so advised Schwab. Taylor said that he told Schwab that plaintiff would pay the defendant $40,000 for all Goodwin material on hand at the Granite City yards, and that Schwab said he would accept the offer, and it was subsequently reduced to writing. Taylor insists that the conversations with Schwab had to do with the price to be paid for the purchase of all the materials pertaining to Goodwin cars that defendant had left on hand at Granite City, and that Schwab said that the defendant would sell plaintiff all of that material. (179 N.Y.S.) Taylor also testified that he saw that the plaintiff would not expect to pay for any material it did not take, and would want a proportionate allowance for that, to which Schwab agreed. Taylor insists that these negotiations had no reference whatever to any inventory, and that the same never was mentioned during their talks. Then on September 14th plaintiff wrote the following letter: "Sept. 14, 1903. "Mr. Joseph Schwab, Pres., American Steel Foundries, 74 Broadway, New York City-Dear Sir: We hereby accept your offer to sell us the material on hand at Granite City, as per list given us (amounting in the aggregate to about $62,000), for the sum of $40,000 f. o. b. cars at Granite City. The material to be loaded promptly by your company under the supervision of our representative; the understanding being that practically all of the standard material as shown on the list you sent us is to be supplied, and that wherever is a shortage of any of the materials shown on the list, or there is any material which we do not take, the same is to be deducted from the above amount of $40,000 at the same relative price at which it was charged to us. "In compliance with your promise to the writer, will you please see that immediate arrangements are made for a force to load this material on cars ready for shipment, Advise us as to the date you will be ready to commence loading, so that we may have our inspector there, and that we may also notify you as to the railroad over which we wish to ship. We would suggest that it might be well for you to promptly send to our office at 96 Fifth avenue a copy of the latest list you had sent you from the plant. If you will send it to us in duplicate, we can send a copy of same to our representative. "Yours very truly, Goodwin Car Company, "William H. Taylor, President. "P. 9.-Terms, net cash on delivery of material." It will be noted that in this letter the plaintiff accepts the defendant's offer to sell the material on hand at Granite City as per list given defendant, amounting in the aggregate to about $62,000. No such offer to sell is in evidence, nor was such an offer given in writing. The offer referred to, which the plaintiff undertakes to accept, is an oral offer arising out of the conversations between Taylor and Schwab, and therefore, at the outset, it may be noted that this alleged contract is not complete in itself, referring as it does to a prior oral offer. Then on September 16th the defendant sent the following letter to the plaintiff: "American Steel Foundries, 74 Broadway, Arthur Building. "New York, Sept. 16, 1903. "My Dear Mr. Taylor: I have your letter of the 14th, accepting our proposition for all the material we have on hand at Grante City works for the sum of forty thousand dollars ($40,000.00) f. o. b. cars our works; terms, cash on delivery. "Of course, in accepting this proposition, it is clearly understood that this clears up all old accounts or contracts which you may have had with the American Steel Foundry Company or the American Steel Foundries. We will arrange to load this material very promptly under your supervision, and am having a list prepared in duplicate, as per your request, which I hope will reach you by to-morrow. "I will also have our people in St. Louis notify you when they are ready for your inspector to be on hand. I expect to be absent from the city for a week or ten days, but this matter will have every attention. "Yours truly, J. E. Schwab, President." This, it will be seen, is not in terms a duplicate of the plaintiff's acceptance, but embraced other terms, and omits certain provisions of the plaintiff's proffer. Nor does this letter of the defendant specifically limit the sale to the material on hand as per list, as does the plaintiff's letter. It is clear, however, from the two letters and from the oral testimony, that plaintiff was buying certain material, listed at nearly $62,000, for the sum of $40,000, and that it was to receive a proportionate reduction from that contract price for any material shown on the list which was short, or which plaintiff might not desire to take; also, this agreement disposed of the contract for the building of the remaining 65 cars. But what is now the subject of controversy between the parties is whether the defendant was to sell to plaintiff for $40,000 all material of every kind on hand in the premises at Granite City, Mo., which could be used in the Goodwin cars, whether specially applicable to them or not, or whether defendant only sold to plaintiff for the price of $40,000 the material listed in the inventory, or so much thereof as plaintiff might conclude to take at a proportionate reduction in price, with a like reduction in case of any shortage between the list and the goods actually on hand. In the letter of September 16th the defendant referred to a list of material which it was having prepared in duplicate and promising to send such a list to the plaintiff. This it did, inclosed with the following letter of September 16th: "American Steel Foundries, 74 Broadway, Arthur Building. "New York, 16th September, 1903. "My Dear Mr. Taylor: As per your request, I have pleasure in inclosing you herewith two copies of the list of material as furnished this office from our Western office, which we have sold you. "Confirming phone conversation had with Mr. Utech this afternoon, I also beg to advise that we have instituted inquiries from our Western office endeavoring to obtain for you the best freight rates possible from St. Louis to Detroit. As soon as we have this information, we will be glad to forward it to you promptly. "Yours truly, "Inclosures. J. E. Schwab, President. "To Mr. Wm. H. Taylor, President Goodwin Car Company, 96 Fifth Avenue, N. Y." When the plaintiff received this letter it found that two sheets were missing. This new list was practically a duplicate of the inventory furnished in June, and varied in no material respect therefrom. Evidently it was based upon the old inventory, and was so understood by both parties, and the absence of the two sheets might at once be detected by comparison with the old inventory, a copy of which the plaintiff still had on hand. In any event the missing sheets were furnished by defendant to plaintiff on September 23, 1903, inclosed with the following letter: "American Steel Foundries, 74 Broadway, Arthur Building. "New York, 23d September, 1903. "My Dear Mr. Taylor: I have pleasure in inclosing you herewith two sheets in duplicate of those omitted in our copy of the report of material on hand at |