224 Mass. 209 | Mass. | 1916
The defendant at the date of the lease upon which the plaintiff relies was in occupation of the premises, but whether
It was undisputed that, being an occupant under a lease the term of which had expired, the defendant remained in possession while negotiations were pending for a further lease of the premises. The lessor, whose testimony was uncontradicted, stated that after an understanding had been reached “he drew up two signed copies of a lease and sent them to the defendant with a letter” requesting him to “sign one of the leases if correct . . .” But, instead of accepting, signing and returning the duplicate, the defendant by letter asked that an option of purchase be inserted cTuTesponding with a similar clause in the lease which had expired. iTcross proposal however is not an acceptance. It does not of itseff conititufe a contract, as the parties were not in accord and circumstances that delivery by’the lessor”depended upon the defendant’s acceptance, to be shown by his signature and return of the duplicate, and that the lessor until acceptance had the right to withdraw from the proposed contract. Metropolitan Coal Co. v. Boutell Transportation & Towing Co. 185 Mass. 391, 395.
The parties after some correspondence never having agreed upon any change in the instrument as drafted, the lessor notified the defendant that he had decided not to renew, and thereupon the defendant replied by returning the duplicate duly executed, with a check for the rent which by the terms of the lease had accrued. By the correspondence which immediately followed the lessor informed the defendant “that the return of the lease is too late and that your check is credited your account as tenant on sufferance,” and the defendant in reply notified the lessor that the lease “was signed within a few days after being received and then held awaiting your reply to my letter as to having the buying option clause inserted. The fact that your lease was in my possession doesn’t give you any grounds for your back water. And I shall hold you to it and expect your fulfilment as you do of me.”
The notification, coupled with the execution and return of the
It follows that the jury should have been thus instructed; and by the terms of the report judgment must be entered for the plaintiff.
So ordered.