¶1This is an appeal by defendant from a judgment for plaintiffs, entered upon a verdict directed by the *529court, and from an order denying a motion to set aside said, verdict.
¶2The complaint is for damages for breach of a contract by defendant to sell and deliver to plaintiffs 1,500 boxes of coke tins.
¶3The answer alleges that no contract whatever was made, although certain negotiations looking toward the making of one took place between the plaintiffs and the defendant, in which the defendant was not a principal, but an agent and broker for others.
¶4Defendant is a metal broker, which fact was known to the plaintiffs.
¶5On May 16, 1891, he wrote plaintiffs the following letter :.
“New York, 16th May, 1891.
“ To Messrs. Kirwan & Tyler,
“ Baltimore:
“ Gentlemen.— I can offer you, subject to prior sale, 1,500 boxes, i. e., 14x20, Bessemer Steel Coke Tins for June delivery at Locust Point, at $4.95 cash on delivery.
“ This is a very low price, but having offered them to other parties, and having only a limited quantity to sell, I can only offer them to you subject to prior sale.
“Yours very resp’ly,
“ED. F. BYRNE.”
¶6And plaintiffs replied by telegram, May eighteenth, as follows:
“ Baltimore, May 18th, 1891.
“ Mr. E. F. Byrne,
“No. 54 Cliff street, New York:
“We accept your offer 16 th if full weight/plates.
“ KIRWAN & TYLER.”
¶7Was the reply by the plaintiffs such' an acceptance of defendant’s offer as to constitute a contract 2
¶8The offer was explicit, and if the answer of the plaintiffs had ended after the word “ sixteenth ” a contract would have been made between the parties.
¶9*530The answer of plaintiffs, however, was a qualification of their acceptance, to wit, “ if full weight plates.”
¶10This qualification left the transaction in such a state that, if "the plaintiffs did not find the plates full weight, they were at liberty to refuse to accept them.
¶11It made the acceptance depend upon facts not contained in ■defendant’s proposal.
¶12To create a binding contract by correspondence, the law requires the offer to be accepted by the party to whom it may be made as it shall be contained in the offer itself.
¶13An offer of a bargain by one person to another implies no ■obligation upon the former until it is accepted by the latter according to the terms in which it was made.
¶14"Until the terms of the agreement have received the assent of both parties, the negotiation is open and imposes no obligation upon either. Mayer v. McCreery, 9 N. Y. St. Repr. 114; 119 N. Y. 434; Brown v. N. Y. C. R. R., 44 .id. 79.
¶15The subsequent correspondence between the parties made mo change of benefit to the plaintiffs. /
¶16For these reasons the judgment must be1 reversed and a new trial ordered, with costs to defendant to abide event.
¶17.Fitzsimohs, J., concurs.
¶18"McCarthy, J. I cannot concur with my associates. I think this does constitute a contract, but then the action ought to be brought against the principal.
¶19Judgment reversed and new trial granted, with costs to -defendant to abide event.