Beach & Clarridge Co. v. American Steam Gauge & Valve Mfg. Co.

• Decision Date: 01 March 1911
• Citation: 208 Mass. 121,94 N.E. 457
• Parties: BEACH & CLARRIDGE CO. v. AMERICAN STEAM GAUGE & VALVE MFG. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 121

94 N.E. 457

BEACH & CLARRIDGE CO. v. AMERICAN STEAM GAUGE & VALVE MFG. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1911

COUNSEL

Warner, Warner & Stackpole, for plaintiff.

G. W Anderson and Phipps, Durgin & Cook, for defendant.

OPINION

SHELDON J.

The jury have found, as upon the evidence they had a right to find, that the defendant's written offer of November 25 1903, was accepted orally by the plaintiff. Beach & Clarridge Co. v. American Steam Gauge & Valve Manuf Co., 202 Mass. 177, 88 N.E. 924, and cases cited. This makes the defendant's seventh request for instructions immaterial, and the exception to its refusal need not be considered.

No exception appears to have been saved to the refusal of the defendant's fifth and sixth requests. At any rate, they were made immaterial by the finding already stated.

The defendant's eighth and thirtieth requests were rightly refused. There was nothing inconsistent in the plaintiff's acceptance of the defendant's offer and the conclusion thereby of a binding agreement with the effort afterwards to procure modifications of that agreement. Such modifications or an abandonment or abrogation of the agreement could be made only with the concurrence of both parties. Richardson Shoe Machinery Co. v. Essex Machine Co., 207 Mass. 219, 223, 224, 93 N.E. 650.

But the defendant contends that this finding was made upon rulings of which some were erroneous and others were insufficient and misleading. We have examined the instructions given with the evidence on which they were based, in the light of the very able argument addressed to us by the counsel for the defendant; and we are clearly of opinion that the instructions were full and accurate. Flattery's evidence upon this issue was plain and direct. The evidence for the defendant simply left this a question of fact. And the question was fairly left to the jury. The justice said to them: 'If there had been an unconditional oral acceptance of the offer, then Mr. Flattery had a perfect right to draw up this additional suggestion or contract without impairing his rights under the oral acceptance. If, however, he did not intend to accept orally, but intended to make a different and counter proposition, why then that amounted to a rejection of the original offer. If you find that this written contract, which was drawn up by Mr. Flattery on the afternoon of November 25th was intended by him to be an acceptance, and he thought it was an acceptance, of the contract, and it was an attempt on his part to accept it, and it was not intended by him to be a counter offer modifying the terms already in the offer, then it would not be a rejection of the offer, if it was not intended by him to be a counter offer. If you find that he had orally accepted the offer earlier, why then that would not be a rejection of the offer. * * * If Mr. Flattery had accepted orally the offer and was intending merely to finance the situation, and try to get the other $5,000, that is not a rejection. * * * If also he thought that this written proposition which he sent was in substance an acceptance of it, and if he intended it to be an acceptance and did not intend to make a definite counter offer, then the right of the plaintiff to accept the offer would still remain open.' This was sufficiently favorable to the defendant. The jury were not allowed, as the defendant has argued, to find an oral acceptance merely upon proof that Flattery intended to make it; they were told not to make the finding unless Flattery did so intend, which is a very different thing.

The defendant's thirty-first request also is made immaterial by the special finding. Of course an offer cannot be withdrawn after its acceptance.

Undoubtedly the plaintiff was bound to undertake the burden of coming to an agreement with the mortgagee so as to secure a renewal or extension of the first mortgage until it could be placed for a term of years. The justice so ruled. But the refusal which the jury must have found was made by the defendant to accept a deed unless the mortgage was extended or placed for a term of three years excused the plaintiff from making any further attempt to carry out its part of the contract. The law requires no vain or idle performance. This was not a mere anticipatory breach by the defendant; it operated also to excuse all further...