Weinstein v. Green

• Decision Date: 04 June 1964
• Citation: 199 N.E.2d 310,347 Mass. 580
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: David WEINSTEIN v. Pearl M. GREEN, administratrix.

Page 310

199 N.E.2d 310

347 Mass. 580

David WEINSTEIN v. Pearl M. GREEN, administratrix.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 4, 1964.

Decided June 4, 1964.

Edward M. Swartz, Boston (William L. Berger, Boston, with him) for plaintiff.

Joseph G. Crane, Boston, for defendant.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK, and SPIEGEL, JJ.

WHITTEMORE, Justice.

The plaintiff sought a decree in the Superior Court commanding the defendant administratrix to convey to him certain property in Boston for which he had submitted a competitive bid. This is an appeal from the final decree dismissing his bill of complaint. As the case was submitted on facts agreed in open court supplemented by documents we consider the issue without reference to the findings and rulings below. McHale v. Treworgy, 325 Mass. 381, 382, 90 N.E.2d 908; Glover v. Waltham Laundry Co. 235 Mass. 330, 333-334, 127 N.E. 420.

An agent of the defendant having exclusive brokerage rights sent requests for bids on two parcels of real estate to the plaintiff and others. The request contained three copies of a purchase and sale agreement form and specified that to submit a bid the bidder must sign two copies of the form and insert in them the name and address of the bidder and the amount of the bid. The request also provided that a certified or bank check for $20,000, payable to the bidder or bidders and indorsed by the payee or payees to the selling agent, must accompany the forms. It specified that the receipt of the two copies of the form at or before the time specified, 'accompanied by such certified or bank check, shall constitute the submission of a bid for the purchase of the property,' and that upon the opening of the bids and 'a determination as to the highest bid, one copy of the form of Purchase and Sale Agreement * * * will be executed by * * * [the defendant] and returned to the successful bidder. * * * Any and all bids submitted on any other form or in any manner other than as hereinabove contained shall be rejected.'

The plaintiff's bid was for $126,000. The accompanying certified check was payable directly to the selling agent and not to the bidder (with endorsement by him) as required by the request. The bid of R. M. Bradley & Co., Inc. (Bradley), was for $130,100. The accompanying check was drawn by Bradley, was not certified, and was payable to the defendant. A representative of the selling agent then declared a recess, Bradley's check was taken to the bank and brought back certified within fifteen minutes. Bradley was then declared the successful highest bidder.

The plaintiff contends that the request for bids was an offer and not a mere invitation to deal and that his bid was the highest qualified bid under the terms of the sale, Bradley's check not being certified at the time the bids were opened. It follows, we are told, that upon this being ascertained the plaintiff's bid operated as an acceptance of the offer, and that a contract was thereupon consummated.

Requests for bids are usually non-binding invitations for offers. See Palmer v. Inhabitants of Haverhill, 98 Mass. 487 (specific reservation); Conway Sav. Bank v. Vinick, 287 Mass. 448, 452-454, 192 N.E. 81 (auction); Payne v. Cave, 3 T.R. 148 (auction); Restatement: Contracts, § 25, comment a, illustration 5. However, 'there seems no reason to suppose that it is not possible for one seeking tenders to make a...