Prescott v. Jones

• Citation: 69 N.H. 305,41 A. 352
• Parties: PRESCOTT v. JONES et al.
• Decision Date: 29 July 1898
• Court: Supreme Court of New Hampshire

41 A. 352

69 N.H. 305

PRESCOTT

v. JONES et al.

Supreme Court of New Hampshire. Rockingham.

July 29, 1898.

Assumpsit by Charles W. Prescott against Jones & Perry. Defendants demur to the declaration. Demurrer sustained.

The declaration alleged, in substance, that the defendants, as insurance agents, had insured the plaintiff's buildings in the Manchester Fire Insurance Company until February 1, 1897; that they notified him, January 23, 1897, that they would renew the policy, and insure his buildings for a further term of one year from February 1, 1897, in the sum of $500, unless notified to the contrary by him; that he, relying on the agreement to Insure his buildings unless notified to the contrary, and believing, as he had the right to believe, that his buildings would be and were insured by them from said February 1st for one year, gave no notice to them to insure or not to insure said buildings; yet they did not Insure the buildings as they had agreed, and did not notify or inform him of their Intention not to do so, and the buildings were destroyed by fire March 1, 1897, without fault on his part.

John T. Bartlett, Burnbam, Brown & Warren, and Isaac W. Smith, for plaintiff.

Drury & Peaslee, for defendants.

BLODGETT, J. While an offer will not mature into a complete and effectual contract until it is acceded to by the party to whom it is made, and notice thereof, either actual or constructive, given to the maker (Abbott v. Shepard, 48 N. H. 14, 17; Perry v. Insurance Co., 67 N. H. 291, 294, 295, 33 Atl. 731), it must be conceded to be within the power of the maker to prescribe a particular form or mode of acceptance; and, the defendants having designated in their offer what they would recognize as notice of its acceptance, namely, failure of the plaintiff to notify them to the contrary, they may properly be held to have waived the necessity of formally communicating to them the fact of its acceptance by him. But this did not render acceptance on his part any less necessary than it would have been if no particular form of acceptance had been prescribed, for it is well settled that "a party cannot, by the wording of his offer, turn the absence of communication of acceptance into an acceptance, and compel the recipient of his offer to refuse it at the peril of being held to have accepted it" Clark, Cent. 31, 32. "A person is under no obligation to do or say anything concerning a proposition which he does not choose to accept. There must be actual acceptance or there is no contract." More v. Insurance Co., 130 N. Y. 537, 547, 29 N. JO. 757, 759. And to constitute acceptance "there must be words, written or spoken, or some other overt act." Bish. Cont. § 183, and authorities cited. If, therefore, the defendants might and did make their offer in such a way as to dispense with the communication of its acceptance to them in a formal and direct manner, they did not and could not so frame it as to render the plaintiff liable as having accepted it, merely because he did not communicate his intention not to accept it. And if the plaintiff was not bound by the offer until he accepted it, the defendants could not be, because "it takes two to make a bargain," and, as contracts rest on mutual promises, both parties are bound or neither is bound. The inquiry as to the defendants' liability for the nonperformance of their offer thus becomes restricted to the question, did the plaintiff accept the offer so that it became by his action clothed with legal consideration, and perfected with the requisite condition of mutuality? As, in morals, one who creates an expectation in another by a gratuitous promise is doubtless bound to make the expectation...