Ellis' Adm'r v. Durkee

• Citation: 79 Vt. 341,65 A. 94
• Parties: ELLIS' ADM'R v. DURKEE.
• Decision Date: 26 November 1906
• Court: United States State Supreme Court of Vermont

65 A. 94

79 Vt. 341

ELLIS' ADM'R

v. DURKEE.

Supreme Court of Vermont. Windsor.

Nov. 26, 1906.

Exceptions from Windsor County Court; John W. Rowell, Judge.

Action by Charles C. Ellis' administrator against Daniel Durkee to recover upon an accepted offer made by defendant. Judgment for plaintiff, and defendant excepts. Reversed and rendered.

The body of the letter of August 12, 1901, mentioned in the opinion, is as follows: "Your last came duly on time. I waited a short time, thinking would finish well started when you was here. It is now 1,300 feet, and I want to put it, if possible, 1,400. It shows good, but the deeper we go the lighter the oil. The well on the hill, finished at 1,200 feet, is good for 100 bbls. daily, and possibly more. Not pumping it now. Nearly 3/4 wells here are shut down. Oil is without price at present time, and stocks are all low in sympathy. If the Combination materializes, prices will go up very soon. H

Bartlett can give you conditions if you will write to them. It is a black eye at present, but surely has a future."

Argued before TYLER, MUNSON, WATSON, HASELTON, POWERS, and MILES, JJ.

John J. Wilson and W. B. C. Stickney, for plaintiff. Tarbell & Whitham and Davis & Davis, for defendant

POWERS, J. The intestate and defendant were stockholders and directors of the Minnehaha Oil Company, of California. The former lived in Massachusetts, and the latter, who was superintendent of the company, in California. In December, 1900, the intestate was anxious to sell his stock, and so wrote the defendant, who replied on the 15th of that month expressing his surprise that the intestate should desire to sell, insisting that it would not be to his advantage to do so, and adding, among other things not here material: "Now at any time after six months, if you still think you want to quit, I will cash you up myself, and pay you six per cent., if you can't do better." This proposition was never withdrawn, but allowed to stand open until accepted, as hereinafter stated. The trial court declined to find that the intestate relied upon this proposition, but did find that after this letter was received the stock advanced in price, and the intestate came to think so well of it as an investment that he did not care to sell at all—at least not at the price he could then get, as he expected it to go higher. Later on, the price of oil went down, oil stocks went down in consequence, and this particular stock became unsalable and worthless. On June 13, 1901, the intestate again desired to sell his stock, and on that day wrote the defendant to that effect The defendant replied on the 19th, urging him to be patient, insisting that it was no time to sell, giving encouraging reports as to the affairs of the company, and assuring him that he had no cause for alarm. On August 12, 1901, the defendant wrote the intestate another letter of similar import. On the 23d of that month, the intestate wrote the defendant that he would accept his offer and turn over his stock to him at 6 per cent To this letter the defendant replied, on the 29th, denying that he ever made such an offer and declining to take the stock. The defendant never has taken it, and it is now held by the intestate's estate. The suit is brought upon the offer and acceptance contained in the correspondence to recover the amount paid by the intestate for the stock with interest at 6 per cent., together with the amount of two assessments paid on the stock, one in August, 1901, and the other in June, 1902. The plaintiff had judgment in the court below for the sum paid for the stock and the amount of the last assessment, with interest on both sums. The defendant objected and excepted to the admission in evidence of the defendant's letter of December 15, 1900, on the grounds that it did not tend to support the declaration, and that the promise therein was without legal consideration.

The letter did not tend to sustain all the allegations of the declaration, but this is not necessary. It did tend to sustain some of the material allegations, and this is all that is required to make it admissible.

We agree with counsel for the defendant that in view of the failure to find that the intestate forbore to sell the stock in reliance upon the defendant's proposition, the offer of December 15th was a mere proposition unsupported by a consideration. But it was an offer just the same, and an offer need not he supported by a consideration in order to serve its purpose as such. The only importance of inquiring whether or not an offer is supported by a consideration is to determine whether it can be withdrawn by the party making it before ft is accepted by the party to whom it is made. If it is based upon a consideration, the power of revocation is not attached to it. But, though it be without consideration, it may be accepted so as to make a binding contract if not sooner revoked, but it may be revoked at any time before it is accepted—and this is so though it states a certain time during which it is to remain open. B. & M. R. R. v. Bartlett, 3 Cush. (Mass.) 224. It is the acceptance of such an offer, within the time and according to the terms specified, which completes the binding contract Cheney v. Cook, 7 Wis. 413; Wilcox...