Zamore v. Whitten

• Citation: 395 A.2d 435
• Parties: , 25 UCC Rep.Serv. 1245 Richard W. ZAMORE and Patricia Zamore v. George D. WHITTEN.
• Decision Date: 04 December 1978
• Court: Supreme Judicial Court of Maine (US)

Page 435

395 A.2d 435

4 A.L.R.4th 899, 25 UCC Rep.Serv. 1245

Richard W. ZAMORE and Patricia Zamore v. George D. WHITTEN.

Supreme Judicial Court of Maine.

Dec. 4, 1978.

Bernstein, Shur, Sawyer & Nelson by Peter J. Rubin (orally), Portland, for plaintiffs.

Bennett, Kelly & Zimmerman, P. A. by Peter H. Jacobs (orally), Peter J. DeTroy, III, Portland, for defendant.

Before ARCHIBALD, DELAHANTY and GODFREY, JJ., and DUFRESNE, A. R. J.

DUFRESNE, A. R. J. ¹

Richard W. Zamore and Patricia Zamore, the husband and wife appellants, on August 15, 1973 brought suit against George D. Whitten, the appellee, in Superior Court, Cumberland County, to recover damages for the alleged breach by Whitten of a contract to purchase their seventy-five shares of stock in Walbridge Bros., (Walbridge), a Maine corporation, for the sum of $20,000.00. On April 1, 1975 the Zamores won a jury verdict in the amount of $10,000.00, which the presiding Justice subsequently set aside on timely motion, ordering a new trial on all issues. At the second trial, the jury again found in favor of the Zamores, but this time their verdict was $8,927.20. Both parties were dissatisfied with the result; so, Whitten moved for a judgment notwithstanding the verdict, while the Zamores made a motion for a new trial on the issue of damages. The Zamore motion was denied, but Whitten's motion was granted and judgment was entered for the defendant-appellee pursuant to the Court's order. The plaintiffs-appellants have filed timely an appeal from the judgment, contending that the rulings of the Court on the respective motions were erroneous.

We deny their appeal.

Summary of Facts

Mr. Zamore had been employed as general manager to run the business of Walbridge and did so until sometime in March of 1972 when he was fired by his brother-in-law, Mr. Whitten (their wives are sisters). The defendant-appellee owned a two-thirds interest in Walbridge or one hundred and fifty shares of stock as compared to the plaintiffs-appellants' ownership of seventy-five shares or a one-third interest in the business. Following his dismissal, Mr. Zamore received from Mr. Whitten in May of 1972 the following letter:

"May 23, 72

Ditch

Please have you and Pat sign these papers. When Walbridge gets on its feet within a year your third interest will be worth $20,000 and I will see you get that or more as things get straightened out.

George."

The reference papers ² enclosed with the above stated letter were promptly signed and mailed to Whitten as had routinely been done in the past in the course of the corporate dealings between the parties, but nothing was said by the Zamores at that time respecting Mr. Whitten's suggestion respecting the Zamore stock. The next communications between the parties took place in December 1972, when Mr. Whitten talked to Mr. Zamore over the phone on two separate occasions. The first conversation was enlisted by Mr. Whitten who invited the Zamores to spend Christmas with him at Sugarloaf (a ski resort). Mr. Zamore quoted Mr. Whitten as saying that they would have their twenty thousand by January 15th or February 1st at the latest, that he did not believe the stock was worth more than twenty thousand because the master plumber had gone sour and they had hired a new one and he had gone sour too. The second conversation came about when Mr. Zamore called Mr. Whitten to let him know that the appellants would not be going to Sugarloaf for Christmas. Mr. Zamore stated that in this second conversation Mr. Whitten again assured him that they would have their twenty thousand by January 15th or by February 1st at the latest (which "arrangement," so Mr. Zamore testified, he indicated to Mr. Whitten was "satisfactory to him") and that, if Mr. Whitten did not get in touch with him by February 1st, he, Mr. Zamore, should call him. Calling in late February, Mr. Zamore could not reach Mr. Whitten. During the entire sequence of these related events Walbridge had been plagued with financial difficulties and the value of the corporate stock was "nominal."

Appellants' Contention

The Zamores assert that the evidence presented a factual question for the jury to resolve. They contend that as fact finders the jury could find either that an unconditional bilateral contract existed in relation to the sale and purchase of their shares of stock in Walbridge Bros., or that the bilateral contract agreed upon was a conditional one but that the appellee either waived the condition or is estopped from asserting its non-fulfillment. We disagree.

Motion for Judgment Notwithstanding the Verdict

Having moved the Court for a directed verdict at the close of all the evidence but without success, the defendant-appellee, following the jury verdict against him and the entry of judgment in accordance therewith, properly and seasonably filed with the Court, pursuant to Rule 50(b), M.R.Civ.P., a motion to have the verdict and the judgment entered thereon set aside and to have judgment entered in accordance with his previous motion for a directed verdict. See Patterson v. Rossignol, Me., 245 A.2d 852 (1968). Even though the case was submitted to the jury on the theories espoused by the plaintiffs-appellants and full instructions had been given them in connection therewith, the Justice below concluded that

"as a matter of law, the Plaintiffs have failed to establish that there was an enforceable contract between them and the Defendant,"

and, therefore, vacated the judgment in favor of the plaintiffs-appellants, granted the motion for judgment notwithstanding the jury verdict and ordered the clerk to enter judgment for the defendant-appellee without costs, denying at the same time the plaintiffs-appellants' motion for a new trial on damages. In this, there was no error.

In determining whether the presiding Justice erred in granting the appellee's motion for judgment notwithstanding the verdict, the appropriate standard is, whether the jury verdict could be sustained on any reasonable view of the evidence, bearing in mind our duty as an appellate court to look at the evidence, together with all justifiable inferences therefrom, in the light most favorable to the party in whose favor the jury verdict was returned. Manchester v. Dugan, Me., 247 A.2d 827 (1968); George v. Guerette, Me., 306 A.2d 138 (1973). The test to be used to determine the propriety of granting a motion for judgment notwithstanding the verdict is the same as that to be applied in the case of a motion for a directed verdict. Cole v. Lord, 160 Me. 223, 202 A.2d 560 (1964); Gowell v. Thompson, Me., 341 A.2d 381 (1975); Rand v. B. G. Pride Realty, Me., 350 A.2d 565 (1976). See Boetsch v. Rockland Jaycees, Me., 288 A.2d 102 (1972).

The Zamores initially contend that the evidence produced at trial, such as the Whitten letter of May 23, 1972 in connection with the two December telephonic conversations, was sufficient to support the formation of an unconditional bilateral contract for the purchase and sale of their Walbridge stock under contract law principles. We hold that the appellants' contract theory must fail in light of their failure at trial to produce any evidence of consideration.

At common law, in order to prove the existence of a contract, the proponent must adduce credible evidence that an offer was made which was then accepted by a communication in the same medium purporting to accept it in the exact terms of the offer. See e. g. Jenness v. Mount Hope Iron Company, 53 Me. 20 (1864). An uncommunicated intention is insufficient in any case to constitute such an acceptance of a proposition as to create a binding contract. Whatever may have been the proposal tendered in the letter of May 23, 1972, there was no responsive communication thereto and silence is not a legal substitute for acceptance.

"In the construction of contracts there is one fundamental rule or consideration which is paramount to all others, and that is, that the intention of the parties, as gathered from the language of all parts of the agreement considered in relation to each other and interpreted with reference to the situation of the parties, and the manifest object which they had in view, must always be allowed to prevail unless some established principle of law or sound public policy would thereby be violated." Bell v. Jordan, 102 Me. 67, 65 A. 759 (1906).

There must be a meeting of the minds of the parties to the contract, i. e., a mutual assent to be bound by its terms, and that mutual assent of the parties to the terms agreed upon must be reflected and manifested in the contract, either expressly or impliedly. Such is essential to the formation of a contract. Belfast & Moosehead Lake Ry. Co. v. Inhabitants of Unity, 62 Me. 148 (1871); Forbes v. Wells Beach Casino, Inc., Me., 307 A.2d 210, 216 (1973).

A mere declaration of intention to enter into an agreement at some time in the future, even if the terms are stated with definite specificity, is not an offer which can be accepted to form a binding contract. Forbes v. Wells Beach Casino, Inc., supra, at 216; Restatement, Contracts, § 27 (1932).

On the other hand, the acceptance or confirmation made in reference to the instant prior alleged offer to the effect that "(w)hen Walbridge gets on its feet within a year your third interest will be worth $20,000 and I will see you get that or more as things get straightened out," in such conclusory and indefinite generalities as "the arrangement is satisfactory," is legally ineffectual to constitute a valid acceptance resulting in a binding contract, because, even if it be assumed that the so-called "offer" was an outright offer to purchase the Zamore stock on the part of Mr. Whitten, the so-called confirmatory "acceptance" by Mr. Zamore lacked positive and distinct language or action of binding effect upon the Zamores to sell their stock. The phone conversations are subject to the same disabilities as the original passive conduct of Mr. Zamore to the...