Saxon Theatre Corp. of Boston v. Sage
| Decision Date | 23 June 1964 |
| Parties | SAXON THEATRE CORPORATION OF BOSTON v. Robert SAGE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Walter H. McLaughlin, Jr., Boston, for plaintiff.
Claude B. Cross, Boston (John M. Reed, Brookline, with him), for defendants.
Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and REARDON, Jj.
The plaintiff's original declaration consisted of three counts in contract: one against Robert Sage, Harry Sagansky, and Louis Fox; one against the Boston Motor Hotel Trust; and one against Bay State Motor Hotel Trust. Each count was basically the same and sought damages for the defendants' breach of an alleged agreement, embodied in a letter, to construct a motion picture theatre and to lease it to the plaintiff on the terms set forth in the agreement. 1 The defendants demurred on several grounds. One of them, which is decisive, was that the agreement was so lacking in essential terms as to be unenforceable. The defendants' demurrer was sustained with leave to amend. The plaintiff appealed.
The plaintiff moved to amend its declaration by substituting a declaration in four counts: the first and third counts (in contract and tort respectively) were against Robert Sage, Harry Sagansky, and Louis Fox; the second and forth counts (in contract and tort respectively) were against the Bay State Motor Hotel Trust. The motion to amend with respect to the tort counts (3 and 4) was allowed; with respect to the contract counts (1 and 2) it was denied.
The counts in tort, which were based on deceit and are similar, alleged the following: The defendants told the plaintiff's president 'that their intention was to construct a theatre on * * * [a certain] parcel of property, which they intended to lease to the plaintiff, to be operated by the plaintiff under a long-term lease.' The plaintiff, acting in reliance upon the representation, entered into an agreement, embodied in a letter, with the defendants for a lease of the theatre. 2 The defendants stated that their intention was to perform the agreement. The defendants never intended to build the theatre, lease it to the plaintiff, or perform their agreement. The representations made by the defendants were made with the intent that the plaintiff would rely on them. The plaintiff did in fact rely on these representations and released publicity advertising the location of the proposed building. It also negotiated a contract with Cinerama, Inc. to exhibit its pictures. In June, 1962, the defendants informed the plaintiff that they would not perform their agreement to construct a theatre and lease it to the plaintiff. By reason of the defendants' false representations, the plaintiff suffered special damages by being unable to perform the contract with Cinerama. 'The plaintiff was further damaged because * * * if the representations of the defendants had been true, the plaintiff * * * would have made extensive profits from the operation and management of * * * [the] theatre.'
The defendants demurred to the third and fourth counts on the ground that they were insufficient in law to enable the plaintiff to maintain its action. The demurrer was sustained and the judge reported the case.
1. A question of practice requires discussion. The defendants suggest that only the tort counts are before us. In support of this position they cite cases holding that after a demurrer to a declaration has been sustained and a superseding amendment has been allowed the demurrer to the original declaration will not be dealt with. Cases to this effect are Cole v. Wells, 224 Mass. 504, 512, 113 N.E. 189; Hushion v. McBride, 296 Mass. 4, 8, 4 N.E.2d 443; City of Revere v. Blaustein, 315 Mass. 93, 97, 51 N.E.2d 772; National Overall Dry Cleaning Co. v. Yavner, 321 Mass. 434, 436, 73 N.E.2d 744; Palmer v. Motley, 323 Mass. 129, 133, 80 N.E.2d 460. The reason for this rule is sound, because ordinarily the amended declaration would entirely supersede the original pleading, thereby making the question of its sufficiency academic. But that is not the situation here, for the amended declaration was allowed only as to the tort counts. Thus it cannot fairly be said that it superseded and made moot the contract counts in the original declaration. We are of opinion, therefore, that the sufficiency of these counts, as to which there was an appeal, ought to be considered.
2. The original declaration presents the question whether the agreement embodied in the letter is sufficiently complete to support an action of contract. We are of opinion that it is not. The terms set out in the letter are uncertain in many material respects and indicate that the parties had reached the stage of 'imperfect negotiation' and not that of a completed contract. Rosenfield v. United States Trust Co., 290 Mass. 210, 217, 195 N.E. 323, 122 A.L.R. 1210. It left open for future determination many matters. There is only a general description of the location where the theatre would be placed and no description of the exact boundaries of the land to be leased. The rent to be paid in the final ten year period was left unsettled and the letter stated that it must be settled 'prior to the execution of the lease.' The exact identities of the lessor and lessee were not settled. Finally, the basic plans and specifications were 'to be mutually agreed upon.' We are of opinion that the letter is too indefinite to be enforced as an agreement. Lyman v. Robinson, 14 Allen, 252, 254; Kaufman v. Lennox, 265 Mass. 487, 164 N.E. 450; Geo. W. Wilcox, Inc. v. Shell E. Petroleum Prod., Inc., 283 Mass. 383, 387, 390, 186 N.E. 562; Rosenfield v. United States Trust Co., supra, 290 Mass. at pp. 216-217, 195 N.E. 323.
3. The third and fourth counts of the plaintiff's amended declaration do not make out a case in deceit. Because of the nature of the alleged false representations set forth in the declaration, any reliance on them would not be reasonable. The representations were: an intention 'to construct a theatre * * * [and] to lease [it] to the plaintiff, to be operated by the plaintiff under a long-term lease,' and to 'perform the agreement for a lease.' Neither of these allegations can provide the basis for a reasonable reliance on successfully working out a long term lease where so much was left for future negotiations.
The representation of an intention to build a theatre and give a long term lease to the plaintiff is no more than an offer to negotiate. The court said in Rosenfield v. United States Trust Co., supra, 290 Mass. at 216, 195 N.E. at 325, 'Normally the fact that parties contemplate the execution of a final written agreement justifies a strong inference that the parties do...
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