H. G. Vogel Co. v. Cauldwell-Wingate Co.

Plaintiff, in response to the invitation of defendant, offered to install its fire extinguishing apparatus in defendant’s projected building. Plaintiff’s written offer contained the following sentence :

“Should this proposition be acceptable to you, we shall be glad indeed to formulate our regular agreement and submit same for your execution."

*371The testimony offered on behalf of plaintiff indicated that its proposition, together with some subsequent modifications, had been definitely accepted by the defendant, both orally and in writing.

The question tested on this appeal is whether the proposals and acceptance constituted mere protocols from which ultimately a “regular agreement should be formulated,” or whether the minds of the parties had met completely and a definite agreement had been arrived at, leaving it possible to be transcribed into a single document later.

It is not necessary to express an opinion on the merits of this controversy, since for the purposes of this appeal it is sufficient to hold that the evidence as it stood at the close of plaintiff’s case plainly presented, at least an issue for the jury to determine. See Sherry v. Proal, 125 App. Div. 508, 109 N. Y. Supp. 1008; same case on appeal from the second trial, 131 App. Div. 774, 116 N. Y. Supp. 234; Gourd v. Healy, 206 N. Y. 423, 99 N. E. 1099.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.