Bradley v. Haven

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: MORTON, J.
• Citation: Bradley v. Haven, 208 Mass. 300, 94 N. E. 268 (Mass. 1911)
• Decision Date: 03 March 1911
• Parties: BRADLEY v. HAVEN et al.

208 Mass. 300

94 N.E. 268

BRADLEY v. HAVEN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1911

COUNSEL

Richard Stone and Robert B. Stone, for appellant.

Herbert Parker and Henry H. Fuller, for appellees.

OPINION

MORTON J.

This is a bill to compel the specific performance of a contract alleged to have been entered into by the defendants as trustees, with the plaintiff, for the sale and conveyance by them to him of a tract of land in Beverly, and also of the fee in certain private roads or rights of ways. There was a decree dismissing the bill with costs, and the plaintiff appealed. The evidence is all before us.

As the result of previous negotiations and interviews between him and one Boardman who was, as the single justice found, the duly authorized agent of the defendants, Boardman wrote to the plaintiff on August 28, 1908, offering to deed to him a tract of land in Beverly belonging to the defendants as trustees and described in the letter as 'the marsh,' for $70,000. No mention was made in the letter of any rights of way. The plaintiff replied to this letter the next day August 29th, by telegram saying: 'Letter received close deal understand rights of way are included as we talked.' Under date of September 2d Boardman wrote to the plaintiff saying amongst other things: 'The matter is closed and the rights of way, as I understand, are included as we talked over.' This letter was not received by the plaintiff until some time on September 3d, nor until after he had received from one of the defendants, Miss Mary E. Haven, in the evening of September 2d, a letter sent by her to him on that day, declining to sell the property. The single justice was unable to find when the letter from Boardman to the plaintiff under date of September 2d was put in the mail, and there is nothing in the evidence by which that can be determined. For aught that appears it may not have been mailed until after the plaintiff had received the letter sent by the defendant Mary E. Haven declining to sell. So far therefore as the plaintiff relies upon the acceptance by Boardman of his telegram in reply to Boardman's letter to him as constituting a written contract for the sale and purchase of the marsh and the rights of way, he fails to show that there was such acceptance before the authority of the agent in regard to the matter had been terminated by the letter sent to him by Miss Haven declining to sell. His telegram cannot be construed as an unqualified and unconditional acceptance of the offer contained in the letter, but rather as in the nature of a counter offer. The offer in the letter was an offer of the marsh for $70,000. Nothing was said, as already observed, about any rights of way. His acceptance was not of that offer pure and simple, but was coupled with the inclusion in the trade of certain rights of way, meaning the fee therein, but for which, as he himself testified, he would not have been willing to pay the price demanded. Until therefore there was an acceptance by the defendants or their duly authorized agent of the plaintiff's counter proposition, no written agreement was entered into. The burden of proof was on the plaintiff to show such acceptance, which, as we have said, he failed to do, and the case might well be disposed of on that ground.

But we also think that there was no sufficient memorandum in writing to bring the case within the statute of frauds. The single justice found that the tract known as the 'marsh' was ascertainable and was commonly known by that name. But he found in effect that while it was possible to ascertain by oral evidence what was meant by the 'rights of way' referred to, it was not possible to ascertain in any other way what was meant by that...