It is conceded by _plaintifi's course] that this did not constitute an acceptance and that up to that time no contract was effected.
Moreover from the information that plaintiff would be advised "upon receipt of confirmation" it could hardly have understood otherwise than that confirmation by the home office was essential. This tends to corroborate Erricson's testimony that all of the orders were taken subject to such confirmation and, while Walker was absent from China at the time of the trial, it is admitted that, if present, he would testify to the same effect. Indeed plaintiff's own letters corroborate this for om November 20 it wrote Erricson "We have also cabled our New York House to confirm in addition with your New York House the various orders placed, ie. 16,500 kegs a G$ 5.40 base, so that please see your friends im America are promptly "advised so that there will be no discrepancies over the acceptances.
Again on January 19, 1920, plaintiff's agent wrote Walker:
"We hope in due course to hear from you by telegram that your New York has confirmed our orders."
Why should plaintiff "hope" for confirmation if that were un necessary and the purchase were already completed in China?
As regards this point it is admitted by plaintiff's agent that alt of the later orders were taken on the same basis as the first. Most of them were in the form of telegrams to Erricson (who had meanwhile gone to Tientsin) to "cover'™ a certain quantity of nails and tha reply usually was "Have covered." Just why the word "cover" was used is not clearly explained but there is no attempt to show that it was intended to mean "confirm."
At any rate the hope was not realized for defendant's home office declined to accept any of the orders. Just when this was first announced is not clear but it was evidently known to plaintiff when it wrote its letter of January 19° and to Walker when he sent his cable to the home office on January 18. This would indicate an unusually prompt reply to Erricson's letter of December 8 transmitting the full and final orders, and distinguish this case from that cited by plaintiff's counsel. Subsequentily Walker wrote plaintiff as follows:
"I received a cable from Mr, Graham with reference to the orders submitted to New York, for confirmation, and ho advised me that the loss which would be incurred, should our company attempt \to accept your proffered business, would amount to $60,000, and I am sure you will agree that this is too great, even among friends.
I still hops that some way will be found to do the business, when conditions return to normal, and to this erd I om again addressing New York on the sub-
Text read from the printed page and cleaned; old type leaves the occasional error.