Gilman v. Cary

• Decision Date: 03 April 1908
• Citation: 198 Mass. 318,84 N.E. 312
• Parties: GILMAN v. CARY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

198 Mass. 318

84 N.E. 312

GILMAN v. CARY et al.

Supreme Judicial Court of Massachusetts, Hampden.

April 3, 1908

COUNSEL

C. H. Beckwith and C. G. Gardner, for appellant.

Jas. B Carroll and Clinton E. Bell, for appellees.

OPINION

BRALEY J.

The company being indebted to the defendant, Cary, upon a promissory note, on February 6, 1906, he brought suit, and attached its property, and shortly after, the attachment was dissolved by a bond on which the plaintiff became one of the sureties. But before dissolution, counsel for the company who in making the offer acted only for the present plaintiff had informed the attorney for Cary, that as the corporation was insolvent, the attachment would not be allowed to ripen into a lien in bankruptcy, and inquired upon what basis a compromise could be effected. To this inquiry, the attorney who inferred the proposition came from the company, offered to accpet a smaller sum, with costs, in settlement. This offer, however, having been refused, it was not until June 6, 1907, the day before maturity, that negotiations were renewed, and Gilman then agreed to pay the amount including costs. A mistake having been made by counsel for Gilman as to the costs, a check for the entire sum to be paid in settlement was not delivered before the offer for same undiclosed reason was withdrawn. The case has since been tried, with a finding for the plaintiff, upon which judgment has been entered, the costs taxed, and the execution issued. The bill asks for equitable relief, because upon acceptance the agreement became binding, and should be enforced by a decree for specific performance. It is claimed by the defendant, that the tender was insufficient. But the plaintiff had the entire day of June 7th in which to avail himself of the offer. If because of the mistake as to costs the check was insufficient, yet by the withdrawal of the offer, before the time had expired in which a further tender could have been legally made, the plaintiff was not called upon to present another check for the right amount, which counsel for Cary had said he would not receive. Under the circumstances the unqualified refusal to accept, before a legal tender had been made, furnished a sufficient excuse for a failure again to tender a check according to the terms of the agreement. Tasker v. Bartlett, 5 Cush. 359, 363; Williams v. Patrick, 177 Mass. 160, 162, 58 N.E. 583. But if the tender is treated as...