Salvation Army, Inc. v. E.R. Wilcox Post No. 16

• Decision Date: 06 November 1916
• Citation: 114 N.E. 60,225 Mass. 136
• Parties: SALVATION ARMY, Inc., v. E. R. WILCOX POST NO. 16.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 136

114 N.E. 60

SALVATION ARMY, Inc.,

v.E. R. WILCOX POST NO. 16.

Supreme Judicial Court of Massachusetts, Hampden.

Nov. 6, 1916.

Case Reserved and Report from Superior Court, Hampden County.

Bill by the Salvation Army, Incorporated, against E. R. Wilcox Post No. 16. Reserved and reported on plaintiff's exceptions to the master's report. Report confirmed, and bill dismissed.

Edmund A. Whitman, of Boston, for plaintiff.

Wm. H. Brooks and Thos. C. Maher, both of Holyoke, for defendant.

LORING, J.

The vote of the defendant post which the plaintiff relies on as an acceptance of its offer to sell to it the land here in question was in these words:

‘Moved that the president be directed to have the title to the property No. 48 Bliss street examined and if found good, to purchase said property at a cost not exceeding $26,000; and procure a good and sufficient warranty deed of the same to this corporation.’

Soon after this vote on October 28, 1914, the president through the treasurer employed a title company to examine the title. Before the president had taken any other action under the vote and before the title company had made a final report upon the title the defendant post voted ‘to rescind’ the vote of October 28, here in question.

We are of opinion that the vote of October 28 was not an acceptance of the plaintiff's offer. It purports to direct the president of the defendant post (first) ‘to have the title to the property’ here in question ‘examined,’ and (second) ‘if found good to purchase said property’ at the price named in the plaintiff's offer and (third) to procure a warranty deed of the same to the defendant post. The vote does not purport by its terms to be an acceptance of the plaintiff's offer so as to bring into being ‘an agreement which creates an obligation.’ In form it is a direction to the president of the defendant post to enter into a contract under the conditions there specified and not of itself a vote by which the post entered into a contract. We are of opinion that by the true construction of it the vote was what in form it purports to be, namely, an initiatory step directing the president to make a contract and (as we have said) not an act by which the post made a contract. The case comes within Shaw v. Stone, 1 Cush. 228, 244;Dunham v. Boston, 12 Allen, 375;Sears v. Kings County Elec. Ry., 152 Mass. 151, 25 N. E. 98,9 L. R. A. 117;Edge Moor Bridge Works v. Bristol, 170 Mass. 528, 49 N. E. 918;Benton v. Springfield, etc., Ass'n, 170 Mass. 534, 49 N. E. 928,64 Am. St. Rep. 320;Madden v. Boston, 177 Mass. 350, 58 N. E. 1024. See, also, in this connection Wheaton Building & Lumber Co. v. Boston, 204 Mass. 218, 90 N. E. 598;Montgomery Ward & Co. v. Johnson, 209 Mass. 89, 95 N. E. 290;McCormick v. Oklahoma City, 203 Fed. 921, 122 C. C. A. 215.

It would seem that by the terms of the vote the president was directed and so authorized to purchase only after the title had been ‘examined and found good.’ Whether that be so or not the vote was rescinded before the president took any action under it except to employ a title company to examine the title. Knowledge of the vote had reached the plaintiff. But that knowledge had not come from the president and there was no pretence that the president had undertaken to buy the property for the defendant post or (as we have said) to take any action under the vote except to employ a title company to examine the title.

The plaintiff's main reliance is on the decision of this court in McManus v. Boston, 171 Mass. 152, 50 N. E. 607. In that case the court held that the vote of the street commissioners there in question ‘imports a contract of purchase by its own terms, and it must, we think, be construed as a binding agreement to purchase, either upon its passage if the plaintiff's offer to sell was then in, or upon the making of his covenant if that was made after the vote.’ On the evidence in that case it was not clear whether the plaintiff made his offer to sell before or after the street commissioners voted to buy. Later the plaintiff signed the written agreement under seal referred to above. Speaking of Dunham v. Boston, ubi supra, this court in that case said, at page 156 of 171 Mass., at page 609 of 50 N. E.:

‘In Dunham v. Boston the...