Beach & Clarridge Co. v. American Steam Gauge & Valve Manufacturing Co.

208 Mass. 121 | Mass. | 1911

Sheldon, J.

The jury have found, as upon the evidence they had a right to find, that the defendant’s written offer of November 25,1903, was accepted orally by the plaintiff. Beach & Clarridge Co. v. American Steam Gauge Valve Manuf. Co. 202 Mass. 177, and cases cited. This makes the defendant’s seventh request for instructions immaterial, and the exception to its refusal need not be considered.

No exception appears to have been saved to the refusal of the defendant’s fifth and sixth requests, so far as they were not given. At any rate, they were made immaterial by the finding already stated.

The defendant’s eighth and thirtieth requests were rightly refused. There was nothing inconsistent in the plaintiff’s acceptance of the defendant’s offer and the conclusion thereby of a binding agreement with the effort afterwards to procure modifications of that agreement. Such modifications or an abandonment or abrogation of the agreement could be made only with the concurrence of both parties. Richardson Shoe Machinery Co. v. Essex Machine Co. 207 Mass. 219, 223, 224.

But the defendant contends that this finding was made upon rulings of which some were erroneous and others were insufficient and misleading. We have examined the instructions given with the evidence on which they were based, in the light of the very able argument addressed to us by the counsel for the defendant ,* and we are clearly of opinion that the instructions were full and accurate. Flattery’s evidence upon this issue was plain and direct. The evidence for the defendant simply left this a question of fact. And the question was fairly left to the jury. The single justice said to them: “ If there had been an unconditional oral acceptance of the offer, then Mr. Flattery had a perfect right to draw up this additional suggestion or contract without impairing his rights under the oral acceptance. If however he did not intend to accept orally, but intended to make a different and counter proposition, why then that amounted to a rejection of the original offer. If you find that this written contract, which was drawn up by Mr. Flattery on the afternoon of November 25, was intended by him to be an acceptance, and he thought it was an acceptance, of the contract, and it was an attempt on his part to accept it, and it was not intended by him to be a counter offer modifying the terms already in the offer, then it would not be a rejection of the offer, if it was not intended by him to be a counter offer. If you find that he had not orally accepted the offer earlier, why then that would not be a rejection of the offer. ... If Mr. Flattery had accepted orally the offer and was intending merely to finance the situation and try to get the other $5,000, that is not a rejection. If, also, he thought that this written proposition which he sent was, in substance, an acceptance of it, and if he intended it to be an acceptance and did not intend to make a definite counter offer, then the right of the plaintiff to accept the offer would still remain open.” This was sufficiently favorable to the defendant. The jury were not allowed, as the defendant has argued, to find an oral acceptance merely upon proof that Flattery intended to make it; they were told not to make the finding unless Flattery did so intend, which is a very different thing.

The defendant’s thirty-first request also is made immaterial by the special finding. Of course an offer cannot be withdrawn after its acceptance.

Undoubtedly the plaintiff was bound to undertake the burden of coming to an agreement with the mortgagee so as to secure a renewal or extension of the first mortgage until it could be placed for a term of years. The single justice so ruled. But the refusal which the jury must have found was made by the defendant, to accept a deed unless the mortgage was extended or placed for a term of three years excused the plaintiff from making any further attempt to carry out its part of the contract. The law requires no vain or idle performance. This was not a mere anticipatory breach by the defendant; it operated also to excuse all further performance upon the other side, and entitled the plaintiff to recover, if the jury found that the plaintiff, provided that the defendant had been willing to comply with the agreed terms, would have carried out the agreement on its part. This was expressly decided when the case was formerly before us in 202 Mass. 177, 183, 184. As in Boyd v. Taylor, 207 Mass. 335, it is now the settled law of the case and needs no further discussion. It follows that the defendant’s fourteenth request was rightly refused, and the rulings made were correct.

For the reasons already stated, the plaintiff’s first and seventh requests were rightly given; its eighth request was properly dealt with; and upon the special finding the questions raised upon the plaintiff’s third, fourth and fifth requests are now immaterial.

The defendant’s twelfth request was given so far as it properly could have been.

The instructions given upon the plaintiff’s sixth request were correct. The agreement required no particular or definite renewal or extension of the first mortgage, but only such a renewal or extension that it could be placed for a term of years, and that the plaintiff should pay a sufficient sum to procure such an extension. This was the express language of the offer which the defendant made and the plaintiff accepted.

The instructions given upon the plaintiff’s ninth and tenth requests were correct. An auditor’s findings upon matters of fact are prima facie evidence. Upon a mixed question of law and fact, where the rulings cannot be distinguished from the findings, it may well be that the court cannot rule peremptorily that the jury must disregard any part of the report; but any bald rulings of law should be passed upon and if necessary corrected by rulings at the trial. Fisher v. Doe, 204 Mass. 34, 40. In a case like the one at bar, this could best be done by giving the jury the correct rule of law and instructing them to disregard that part of the report which stated the law differently. This was the course adopted.

The jury plainly could infer from the facts in evidence that but for the defendant’s refusal to accept anything short of a three years’ extension of the mortgage the plaintiff would have been able and ready to carry out the agreement as made.

As to damages, it was not assumed at this trial, as formerly it had been, that the market value of the property was the same as the price agreed upon. The defendant’s president testified that its officers did not regard that price as representing the value of the property, but that it was what under the existing circumstances they were willing to pay for it rather than to lose their leasehold estate or continue to pay the agreed rent. It was a fair inference from his testimony that the defendant then agreed with the plaintiff’s present contention that the real value was considerably less than the agreed price. The question was for the jury; and we can look only at the exceptions which were saved at the trial.

The defendant’s twenty-seventh request was given in substance. Its twenty-eighth request assumed facts as true which were themselves in dispute. It could not have been given as framed. The trial judge was not bound to single out one part of the case for comment, as was called for by the twenty-ninth request. And both these questions were properly covered by the rulings given. The reference in the charge to the “ taxable value ” of the property was not excepted to. The evidence as to this came in without exception, and indeed seems to have been drawn, without any restriction as to its purpose, from one of the plaintiff’s witnesses by the defendant in cross-examination. Under such circumstances we should hesitate to sustain an exception to this part of the charge if the question had been saved.

We do not find that there was any error at the trial.

jExceptions overruled.