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was not prejudicial to the defendant, I advise that we order a new trial.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concurred, except HIRSCHBERG, J., dissenting.

Judgment and order reversed and new trial granted, costs to abide the event.

CHARLES O. GATES, Respondent, v. WILLIAM M. DUDGEON, as Executor of and Trustee under the Last Will and Testament of RICHARD DUDGEON, Deceased, Appellant.

Contract for the sale of land, by correspondence-proof required to establish it — acceptance of an offer upon terms varying therefrom.

While a contract for the sale of lands may be established by correspondence, it must appear therefrom that there was an offer and acceptance of all the essen. tials without qualification and in precise terms.

In determining whether the contract has been established, the court should consider the entire correspondence, and not a part thereof only. Where A makes to B an offer to pay a specified sum for certain real estate, the conveyance to be made to a third person, and B replies, stating that his title rests upon adverse possession only, and that if A, upon an examination of such title, is satisfied therewith, he will execute a conveyance to A, no contract results, as an acceptance upon terms varying from the offer is but a rejection.

APPEAL by the defendant, William M. Dudgeon, as executor of and trustee under the last will and testament of Richard Dudgeon, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 23d day of January, 1902, upon the decision of the court rendered after a trial at the Kings County Special Term.

Daniel P. Hays [Ralph Wolf with him on the brief], for the appellant.

David C. Bennett, Jr., for the respondent.

JENKS, J.:

This is an action for specific performance of a contract to convey real estate wherein the defendant pleads the Statute of Frauds. (2

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R. S. 135, §§ 8, 9; Real Prop. Law [Laws of 1896, chap. 547], § 224.) The plaintiff insists that the contract is made out by the letters of the parties. In the determination of that question we should consider the entire correspondence, and not rest at the reading of but a part thereof. (Hussey v. Horne-Payne, L. R. 4 App. Cas. 311; May v. Thomson, L. R. 20 Ch. Div. 705; Barrow Steamship Co. v. M. C. R. Co., 134 N. Y. 15, 23; Carter v. Shorter, 57 Ala. 253.) In Hussey v. Horne-Payne (supra), an action for specific performance, where reliance was upon correspondence, CAIRNS, L. C., said: "You must take into consideration the whole of the correspondence which has passed. You must not at one particular time draw a line and say: 'We will look at the letters up to this point and find in them a contract or not, but we will look at nothing beyond.' In order fairly to estimate what was arranged and agreed, if anything was agreed between the parties, you must look at the whole of that which took place and passed between them." In May v. Thomson (supra) LINDLEY, L. J., speaking of letters, says: "It appears to me there is not any portion of this correspondence which can be fairly separated from the rest and be treated as a concluded agreement. It appears to me that each letter is modified by the one which follows it and that there is never a period throughout at which we can stop and say: Here is a definite and concluded agreement between the parties. The case of Hussey v. Horne-Payne, before the House of Lords, shews that we must look at the whole correspondence from beginning to end. Of course, if we find a few letters which are perfectly plain in themselves, which shew an agreement, and the parties do not follow them up by further correspondence, we have a comparatively easy case; but, where each letter is followed immediately by another, which suggests something else as a topic of further discussion, it becomes most dangerous to draw a line after any particular letter."

The first letter of the plaintiff may be read as an offer of the plaintiff to pay $3,000 cash for the realty to be conveyed, to a third person named, by the usual trustee's deed, without warranty. The answer of the defendant states that his title rests on adverse possession only and suggests an examination by the plaintiff, and that, if plaintiff is satisfied, he is ready to give the usual trustee's deed without warranty to the plaintiff. The consideration is not named or

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[Vol. 72. confirmed. Even if it should be inferred that the defendant agreed

upon the price, this is but an inference from his silence. But, assuming that the minds met as to the property to be conveyed and the price to be paid therefor, it is clear that the defendant did not agree to execute the conveyance to any third person as proposed by the plaintiff or to do so unless the plaintiff was satisfied, after considering his statement, of the source of his title and his suggestion that the plaintiff should examine into the title. If A says to B, "I am ready to pay $1,000 for your farm, Blackacre, if you will make the deed to C," and B answers, "I will give you a deed for that sum," there is no meeting of the minds. B has a perfect right to insist who shall be his grantee, and his offer to accept A as grantee is not an acceptance of A's offer that C shall be the grantee. An acceptance upon terms varying from the offer is but a rejection. (Minneapolis, etc., Ry. v. Columbus Rolling Mill, 119 U. S. 149; Mahar v. Compton, 18 App. Div. 536.) That the plaintiff did not consider that the minds had met in contract appears from his letter of May sixth, for he accepts the suggestion to look into the title and calls attention to the omission of the defendant to state the consideration or to agree to execute a deed to some grantee other than the plaintiff. The letter of May thirteenth is not confirmatory, but is an invitation for a further and a general conference upon the subject-matter. The letter of May thirteenth is written to inclose a draft for a deed, while that of June third offers to "go over the matter," although the writer states that he supposed that it had been settled save as to formalities.

Upon consideration of this correspondence I think that it does not establish a meeting of the minds upon all of the essentials which must be embodied in a contract, but that it must be construed as the writing of preliminary negotiation, which shows progress towards an agreement, but not the completion thereof. While a contract may be established by correspondence, it must appear therefrom that there was an offer and an acceptance of all the essentials without qualification and in precise terms. (Barrow Steamship Co. v. M. C. R. Co., supra; Brown v. N. Y. Central R. R. Co., 44 N. Y. 79; Bish. Cont. [Enl. ed.] § 323.) In Stratford v. Bosworth (2 V. & B. 341) the vice-chancellor cites the rule of ELDON, L. C., in Huddleston v. Briscoe (11 Ves. Jr. 583): "The court is not to decree

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performance unless it can collect upon a fair interpretation of the letters that they import a concluded agreement; that, if it rests reasonably doubtful whether what passed was only treaty, let the progress towards the confines of agreement be more or less, the court ought rather to leave the parties to law than specifically to perform what is doubtful as a contract."

The judgment should be reversed and a new trial ordered, costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.

MEDAD E. STONE, as Administrator of the Estate of LEVERETT STONE, Deceased, Respondent, v. BRIDGET CRONIN, Individually and as Administratrix of the Estate of MICHAEL CRONIN, Deceased, Appellant.

Books of account as evidence — proof that others had settled by the books — exclusion of evidence as to authority to order goods.

Books of account are not entitled to be admitted in evidence upon proof by several witnesses that they had settled bills rendered to them, and by another witness that such bills were correctly copied from the books of account where none of the witnesses testifies that he settled his account by the books. Where, in an action to recover for goods sold and delivered by the plaintiff's intestate to the defendant, it appears that a portion of the goods was ordered by the defendant's daughter, it is error for the court to refuse to allow the daughter to be asked, "Did your mother, the defendant in this action, ever request or instruct or direct you to order any goods of any kind from Mr. Stone during his life?"

APPEAL by the defendant, Bridget Cronin, individually and as administratrix of the estate of Michael Cronin, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 18th day of March, 1901, upon the verdict of a jury, and also from an order entered in said clerk's office on the 27th day of March, 1901, denying the defendant's motion for a new trial made upon the minutes.

The action is brought to recover goods sold by the plaintiff's intestate to the defendant.

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W. J. Powers, for the appellant.

John G. Clark, for the respondent.

JENKS, J.:

In

I think that the plaintiff did not meet the rule of Vosburgh v. Thayer (12 Johns. 461) and Smith v. Smith (163 N. Y. 168), and that, therefore, the admission of the books was erroneous. The several witnesses testify that they settled bills rendered to them, which the plaintiff testifies were correct copies of the books, but none of the witnesses testifies that he settled his account by the books. Matter of McGoldrick v. Traphagen (88 N. Y. 334) "several witnesses testified that they had settled their accounts with the respondent and found them honest and correct, but had never seen the books," and the court, per MILLER, J., say: "The bills settled, which were proved to have been copied from the books, were introduced in evidence, and the respondent's bookkeepers testified that they were copied correctly from the books. One of them also swore that he had settled his own accounts with the respondent by his books and to the best of his knowledge he kept honest books, and that he never heard anything to the contrary. Although the evidence of those who had settled from copies from the books which were produced does not strictly comply with the rule stated as to this portion of the proof, the evidence of the bookkeeper who settled his accounts by the books supplied this defect, and he testified to all that was required within the authorities. The rule in regard to this subject is that the party shall prove by those who have dealt and settled with him that he keeps fair and honest accounts. (Vosburgh v. Thayer, 12 Johns. 461.)" The plaintiff consented to the dismissal of the cause of action against the defendant as administratrix. The plaintiff failed to prove that the defendant personally ordered any of the goods or that she ever promised to pay therefor. There was testimony that an employee of the plaintiff did deliver some chicken corn at the house of the defendant, and as to this item the defendant testified that although she never ordered it, her daughter did, and it was delivered. It appears that the conduct of the business was entirely in the hands of the daughter of the defendant, and that the plaintiff saw her on two occasions. The learned court refused, under exception, to permit the daughter to be asked: