#### Luigi Russo fu Agatino, Appellee, v. Louis Ginocchio et al., trading as Ginocchio, Costa & Company, Appellants.

Gen. No. 23,649.

(Not to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Reversed with finding of fact and judgment here.

Opinion filed June 14, 1918.

Rehearing denied June 24, 1918.

Statement of the Case.

Action by Luigi Russo fu Agatino, plaintiff, against Louis Grinocchio, P. Costa and A. M. Meyer, trading as Grinocchio, Costa & Company, defendants, to recover damages for breach of a contract to purchase almonds. Plaintiff resided in Sicily and the negotiations were conducted through one Pinder, a local broker. Plaintiff inquired of the latter as to the price of almonds for “first half September.” Pinder then cabled plaintiff as follows: “Lowest 150 bales Palma new crop first half September direct steamer,” to which plaintiff replied “126 September.” Upon defendants’ informing Pinder that they had a price at 120 “first half September,” he cabled that the Hamburg market was lower and received a cabled reply from plaintiff “I accept 120 September.” Believing that this message was a direct reply to their inquiry, defendants agreed to take 150 bales. Pinder then cabled plaintiff “Sold Costa 150 Palma new crop September 120” (meaning 150 bales at 120 shillings per cent). Defendants ’ negotiations with Pinder contemplated shipment before the first half of September while plaintiff claimed the right to ship any time during the month.

An amended statement of claim filed during the trial relied upon a modification of the contract so as to call *417for shipment by the 16th of September, but up to that time plaintiff’s correspondence indicated reliance upon his original contention that the contract called for shipment during September. From a judgment in favor of plaintiff, defendants appeal.

Abstract of the Decision.

Sales, § 18 * — when contract through tyroTcer acting for both parties is not effected. Where a domestic purchaser and a foreign vendor acted through the same broker, and the purchaser’s offer made through the broker contemplated shipment prior to the middle of a certain month and the seller’s acceptance made through the same broker was based upon shipment at any time during such month, no contract was created since the minds of the parties did not meet.

Culver, Andrews, King & Stitt, for appellants.

Newman, Poppenhusen, Stern & Johnston, for appellee; Edward R. Johnston, of counsel.

*

See lUinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Barnes

delivered the opinion of the court.