Webster v. Bowles, 4807.

Decision Date07 June 1954
Docket NumberNo. 4807.,4807.
Citation213 F.2d 417
PartiesWEBSTER v. BOWLES et al.
CourtU.S. Court of Appeals — First Circuit

Laszlo Kormendi, New York City (Bartholomew A. Brickley, Howard W. Cole, Brickley, Sears & Cole, Boston, Mass., and Graustein & Kormendi, New York City, on brief), for appellant.

Robert W. Meserve, Boston, Mass. (Arthur T. Garvey, Springfield, Mass., and Nutter, McClennen & Fish, Boston, Mass., on brief), for appellees.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

The complaint in this case sought specific performance of an alleged contract to sell to plaintiff 70,000 shares of stock in Alliance Manufacturing Company, an Ohio corporation. Federal jurisdiction was based upon diversity of citizenship. At the outset, the district court made an order severing issues for trial, directing that the issues whether there was a contract, and, if so, whether it complied with the Statute of Frauds, be tried together as separate issues in advance of the trial of other issues in the case. Plaintiff testified at length regarding his negotiations with defendant Sherman H. Bowles, since deceased, and much documentary evidence was received on the segregated issues. At the conclusion of the plaintiff's case, the district court indicated that it was prepared to make its ruling, so evidence was not put in on behalf of the defendants. The court found as facts that no firm offer to sell was made by Bowles, and that if there was such an offer, it had lapsed by failure of plaintiff to accept it within a reasonable time; and it ruled as a matter of law that on the plaintiff's own showing there was no evidence to warrant recovery. Accordingly, the court entered judgment dismissing the complaint, from which judgment the plaintiff has taken this appeal.

It seems that the plaintiff owned or controlled 33,000 shares of stock in Alliance Mfg. Co., and that Bowles owned or controlled 70,000 shares in the same company. Of the two, Bowles had been the more active in supervising the operations of the company. Beyond any doubt, the early negotiations between the plaintiff and Bowles were looking to a purchase by Bowles of plaintiff's interest in Alliance Mfg. Co., rather than the other way around.

Plaintiff had a conference with Bowles in New York on February 4, 1950, and again in Boston on February 14, 1950. At these conferences Bowles elaborated upon a plan of his for a merger of Alliance Mfg. Co. with Atlas Tack Corporation (of which Bowles was president) on the basis of 5 shares of Atlas for 9 shares of Alliance. According to the plaintiff's testimony, he told Bowles that he wasn't interested at all in the merger proposal, "but I told him if he wanted to pay cash to all the shareholders of Alliance and we agreed on a certain price, that I would go along or use my best efforts to go along in the deal." At the Boston conference on February 14, 1950, some kind of tentative agreement was reached between Bowles and the plaintiff for the purchase of the 33,000 shares of stock in Alliance Mfg. Co. owned or controlled by the plaintiff.

Thereafter, the plaintiff went to New York, thence to Chicago and Cleveland, and finally returned to his office in Montreal on February 22, 1950. While in Chicago plaintiff had seen Mr. Doyle, the president of Alliance Mfg. Co., and told him that he thought he had disposed of his 33,000 shares in the company. Mr. Doyle tried to tell plaintiff that he was foolish to sell out, but plaintiff testified that he had made up his mind "if Mr. Bowles went through with his understanding that I would have to go along". But evidently plaintiff arrived back in Montreal on February 22, 1950, with the feeling that he had made a mistake in entering into arrangements with Mr. Bowles for the sale of plaintiff's stock.

When plaintiff arrived at his office in Montreal on February 22, he found awaiting him two communications from Bowles relating to Alliance Mfg. Co. The first was a letter from Bowles to the plaintiff, dated February 15, 1950, in the following terms:

"Confirming conversation held yesterday afternoon at the Statler, enclosed is a certified copy of the vote of the Board of Directors of Atlas Tack Corporation, held this afternoon, showing authorization of purchase of your 33,000 shares of stock of the Alliance Manufacturing Company.

"Enclosed is check for agreed upon down payment of $129,000, and three notes covering the balance of the payment.

"If your stock is in New York with Albert Wonham, would you please instruct them to deliver the stock to our Miss Adele Sarbach, Room 1710, 31 Nassau Street, New York City. They need just to notify her, and she will pick it up at their office.

"Would you please also instruct them to deliver a proxy for the annual meeting of Alliance Manufacturing Company to be held March 9, 1950, in case there is any delay in the transferring of the stock.

"Do you think of anything else that either of us should do in the mechanics of this transaction? I am sure everything will work out all right.

"We are sending you copy of the rest of the Atlas vote in relation to the offer made to the other stockholders, for your records. Mr. Hott, Hansen and Doyle, with whom I happened to talk all seem to think well of your suggestion to have the offer made by Atlas to all of the Alliance stockholders."

Enclosed with this letter, in addition to the copies of the Atlas votes referred to, was a check of Atlas Tack Corp. in the sum of $129,000 payable to the...

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  • Confederate Motors, Inc. v. Terny
    • United States
    • U.S. District Court — District of Massachusetts
    • 18 Julio 2011
    ...firm offer” but was rather a willingness to engage in further discussions along the lines proposed in the email. See Webster v. Bowles, 213 F.2d 417, 419–20 (1st Cir.1954) (telegram expressing a desire “to discuss” the matter was not an acceptance of an alleged offer). Since Terny did not i......

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