Supreme Court, December, 1919. [Vol. 109. prospective report. It is a matter of common knowledge that title companies, in entire good faith, reject titles and refuse to insure by reason of objections which a court of equity characterizes as insufficient to justify a refusal to perform. Either consciously or otherwise the phrase in question empowers the plaintiffs, upon plea of dissatisfaction, to base a refusal to perform upon objections not amounting to "defects" of title. The declared purpose of the plaintiffs to pass title if free from "defects "would have sufficed; but the paragraph quoted, declaring an intent to pass title if a prospective report by a title company is satisfactory to them, is a variation. It engrafts into the acceptance a qualification not found in the option. It follows, therefore, that the minds of the parties never met and that the letter of September 8, 1919, was an ineffectual acceptance and failed to create a contract between the parties. It is a well-established rule that, in order to create a contract, the minds of the parties must exactly meet in reference to every substantial term of the proposed contract. There must be a clear and unequivocal acceptance of a definite and certain offer, without material qualification or variation. An acceptance incorporating a term, condition or reservation not embraced within the terms of the offer is equiv alent to a rejection. In Mahar v. Compton, 18 App. Div. 536, the court said: "In other words, there must have been an exact meeting of the minds of the contracting parties in respect to every detail of the proposed contract, and if the precise thing offered was not accepted; or if the acceptance was in any manner qualified by conditions or reservations, however slight they may have been, the universal rule seems to be that no valid contract is thereby established, but that such a modified or qualified acceptance must rather be treated as a rejection of the offer." Misc.] Court of Claims, December, 1919. The rule is also laid down in the following cases: Gates v. Dudgeon, 72 App. Div. 562; Dodsworth v. Hannevig, Inc., 184 id. 539; Myers v. Smith, 48 Barb. 614; Howells v. Stroock, 30 Misc. Rep. 569; Marschall v. Eisen Vineyard Co., 7 id. 674; James v. Darby, 100 Fed. Repr. 224, 228; James Option Contracts, §§ 837, 840, 841. I am of the opinion that the last paragraph of the letter of September 8, 1919, destroys its efficacy as an acceptance of the proposal contained in the option of March 7, 1919, and that no contract, therefore, ever resulted. I, therefore, dismiss the complaint and direct a judgment in favor of the defendant. Ordered accordingly. ANNA MAE SHORT, Claimant, v. STATE OF NEW YORK. Claim No. 15837. (State of New York, Court of Claims, December, 1919.) While claimant with others was proceeding on a dark night along a highway maintained by the state, in an automobile owned and driven by her husband, the car ran into an excavation about seven feet distant from the edge of the macadam pavement, which excavation had been left by a state contractor after taking a quantity of gravel from land adjoining the highway. Upon the hearing of a claim for damages to the car and to the clothing of claimant and her husband, evidence was given tending to support a claim that the car was being driven partly upon the macadam and partly upon the earth shoulder, until it arrived at a point directly opposite the excavation, when, due to the softness of the earth shoulder, the effect of the rains and the nearness of the side of the excavation, the soft earth of the shoulder gave way, causing the car to slide off into the excavation. The evidence for the state, corroborated by the driver of the car, tended to show that the Court of Claims, December, 1919. [Vol. 109. car started to leave the macadam at a point about two hundred feet easterly from the excavation and gradually bearing off to the north, until at the easterly end of the excavation it ran directly into it. Held, that as the accident would not have happened had the driver confined himself to that part of the highway prepared and intended for travel, it was caused by his negligence and the claim should be dismissed upon the merits. CLAIM for damages upon highway. Elijah T. Russell, for claimant. Charles D. Newton, attorney-general, A. A. Armitage, deputy attorney-general, for state. SMITH, J. This claim was originally filed by H. Jackman Short, as claimant, after which it was assigned to his wife, Anna Mae Short, who has been by order of the court substituted as claimant. The claim is for damages to an automobile and clothing of H. Jackman Short and his wife, on December 24, 1918, caused by an automobile owned and driven by the said H. Jackman Short falling into an excavation within the bounds of a highway in the county of Dutchess, known as the Millbrook-Lithgow road, which highway is a county highway and at the time of the accident was and for some time previous thereto had been maintained by the state under the patrol system. This highway as constructed by the state consisted of a paved macadam roadway sixteen feet wide with shoulders seven feet wide on either side constructed of earth, the shoulders sloping down from the level of the paved roadway to the level of the adjoining lands. Something more than a year prior to the time of the accident a state contractor engaged in the work of resurfacing a portion of this highway had exca Misc.] Court of Claims, December, 1919. vated a quantity of gravel from the land adjoining the highway, leaving an excavation or borrow pit, the extreme length of which, parallel with the highway, was about thirty-five feet, and the extreme width of which, perpendicular to the highway, was about eight feet, and its depth at its deepest point was about two feet below the level of the adjacent lands. The nearest edge of this excavation was seven feet distant from the edge of the macadam pavement. The highway extended generally east and west, the excavation being on its northerly side. In the daytime this excavation was plainly observable to one driving along the highway, and on days immediately prior to the accident claimant had driven over the road and had passed the excavation at least eight times. On the evening of December twenty-fourth, as the original claimant H. Jackman Short was driving an automobile in a westerly direction along this highway, the automobile ran into this excavation and it and the clothing of claimant and his wife were damaged to the extent, as proven upon the trial, of $441.80. It is claimed that the state was negligent in permitting this excavation to remain unguarded by a railing or other barrier, which negligence it is claimed was the cause of the accident and consequent damage. It was conceded upon the trial that the night of the accident was a dark, rainy night and that immediately prior to the time when claimant's automobile was projected into the excavation another automobile traveling in the opposite direction with bright blinding headlights had passed and that because of the bright lights of the opposing automobile it was impossible for the occupants of claimant's automobile to see the road immediately ahead of them. The original claimant, who was driving the automobile at the time of the accident, did not testify as a Court of Claims, December, 1919. [Vol. 109. witness upon the trial, being absent from the state at the time for personal reasons; and the evidence in support of the claim was given by the wife of the original claimant, now the present claimant, and by the other occupants of the automobile. The claim as originally filed and verified by the driver of the automobile alleged "that claimant was driving his car along said highway on the evening of the date aforesaid and without any fault or negligence of his own and while attempting to pass another automobile proceeding in the opposite direction, ran into said hole with the result as above alleged." Upon the trial, however, the claim that the automobile was driven into the excavation was abandoned and evidence given tending to support a claim that the automobile was driving partly upon the macadam and partly upon the earth shoulder until it arrived at a point directly opposite the excavation, when, due to the softness of the earth shoulder, the effect of the rains and the nearness of the side of the excavation, the soft earth of the shoulder gave way, causing the automobile to slip or slide off into the excavation. Evidence produced by the state tended to prove that claimant's automobile started to leave the macadam pavement of the highway at a point about 200 feet easterly from the excavation and gradually bearing off to the north until at the easterly end of the excavation it ran directly into it; and witnesses testified to tracks in the soft earth of the shoulder and the side of the road showing that course to be the one taken by the automobile. This evidence is in harmony with the allegation in the claim above quoted, which, as stated, was verified by the driver of the car; and upon all of the evidence we find as a fact is the manner in which the accident happened. Upon this state of facts we cannot find that the state was negli |