Obery v. Lander
| Decision Date | 23 May 1901 |
| Citation | 60 N.E. 378,179 Mass. 125 |
| Parties | OBERY v. LANDER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Samuel A. Fuller and James J. Irwin, for plaintiff.
J. W Spaulding and R. W. Hunter, for defendant.
This is an action upon a contract for the purchase of certain stock by the defendant from the plaintiff. The plaintiff covenanted to sell to the defendant on demand 'the capital stock of the Mercer Cell Company I now own, consisting of two hundred shares,' and at once to indorse and deliver the same to one Bisbee, to be held by him in escrow and to be delivered to the defendant, on payment of one thousand dollars within fifteen days, forty shares; on payment of two thousand dollars within thirty days thereafter, eighty shares; and on payment of two thousand dollars within thirty days after the second payment, the remainder of the shares. It was stipulated that 'this option expires * * * if not accepted within fifteen days.' The stock was indorsed and delivered to Bisbee at once. At the trial the defendant excepted to a refusal to rule that there was no evidence that the defendant had agreed to purchase the shares. The defendant also excepted to the exclusion of evidence of the market value of the stock.
As to the evidence of the defendant's acceptance of the offer contained in the plaintiff's covenant, it would seem to be enough that the defendant paid the first thousand dollars and received the stock for it. The defendant argues, to be sure, that this was not an acceptance of the whole offer, on the ground that the offer was of three several sales, and also that the requirement that the option should be accepted within fifteen days shows that acceptance and the first payment were different things. We think it so plain that there was but one offer of the whole lot of two hundred shares, although to be paid for and delivered in parcels that we shall spend no argument upon the matter. Barrie v. Earle, 143 Mass. 1, 8 N.E. 639. We think it equally plain that the requirement as to acceptance is merely an emphasizing of the necessity for action within the time named, and that it does not imply that the defendant could make a payment and receive stock under the offer without accepting it. If, however, it were necessary to go further the defendant's statement to the plaintiff's attorney 'that he would not be forced to pay for the certificates; that he would pay...
To continue reading
Request your trial