| Mass. | May 14, 1894
The maternal facts shown by the plaintiff’s bill, briefly stated, are as follows.
The American Protective League held a lease from Grace which had twelve years to run, the annual rent being $12,000. The lease contained a provision that the lessee should not assign it nor underlet it for any more hazardous use, etc., nor make any material alterations or additions other than those specified in the lease without the consent in writing of the lessor.
It thus appears that certain alterations were allowed, but what they were is not shown. All other material alterations were forbidden.
The American Protective League came into the hands of the plaintiff as receiver. According to the averments of the bill, the defendant Bradstreet, acting for himself and the defendant Bennett, on December 17, 1892, offered in writing to the receiver $5,600 for the unexpired term and for certain furniture. The receiver in writing accepted this offer, “ subject to obtaining the assent of Mr. Grace, and of the court if necessary.” On December 24, Mr. Bennett sent to the plaintiff a note, asking Grace’s approval of the alterations which had been made, and this is relied on by the plaintiff as showing Bennett’s recognition that Bradstreet in signing the offer of purchase of the lease was acting for Bennett as well as for himself.
Prior to December 20, Grace had orally consented to an assignment of the lease; but on December 23, Grace told the receiver that he would not consent. On December 28 the court gave its assent to the sale of the lease by the receiver. Grace’s consent in writing was never obtained. On December 30, Grace gave to the receiver formal notice that the lease had been violated by making alterations, etc. Large alterations had been made in the premises, costing $20,000 ; whether these were all included in those specified in the lease does not appear;
It would seem, from the facts stated, that Grace’s consent to the assignment of the lease might be important to purchasers of it, as otherwise they might run the risk of taking a title which he could defeat.
In view of this, we must look to see what contract was made by the defendants, taking all the averments of the bill as true.
The bill need not aver that the contract was in writing, or that a memorandum in writing was made; but if it appears on the face of the bill that no written contract was made or written memorandum signed by the defendants, a demurrer will lie. Walker v. Locke, 5 Cush. 90. Slack v. Black, 109 Mass. 496" court="Mass." date_filed="1872-03-15" href="https://app.midpage.ai/document/slack-v-black-6416861?utm_source=webapp" opinion_id="6416861">109 Mass. 496. Ahrend v. Odiorne, 118 Mass. 261" court="Mass." date_filed="1875-09-04" href="https://app.midpage.ai/document/ahrend-v-odiorne-6418180?utm_source=webapp" opinion_id="6418180">118 Mass. 261.
In this case, there is no averment of any agreement by the defendants except such as was contained in the written paper, one part of which was signed by the defendant Bradstreet, and the other by the plaintiff, on December 17. We therefore have to look to the writing alone to see what contract was made. It does not clearly appear whether the written offer of the defendants to pay $5,600 for the unexpired term, and the written acceptance by the plaintiff, were made at the same time, and as parts of the same transaction, or not. We will therefore look at the transaction in both aspects.
First. If the defendants sent to the plaintiff an offer in writing, as a proposal on their part, and the plaintiff returned to them a writing accepting the offer, “ subject to obtaining the assent of Mr. Grace, and of the court if necessary,” this was not an unqualified acceptance, but it added a new term, which was a matter of substance, and a real addition. Where an offer is made by one party, and the other annexes a condition to his acceptance, there is no completed contract till the party making the first offer assents to the condition. Till that is done, their minds have not met. In the plaintiff’s bill there is no averment that the defendants ever assented to the condition imposed by the plaintiff, and therefore, if the defendants’ offer
■ -Secondly. The other aspect is, that the offer and the acceptance were made at the same time and as one transaction ; and that the form into which the parties put their contract was an offer signed by the defendants, and an acceptance signed by the plaintiff, these two together showing the contract, just as if it had been written in the form of a memorandum of an agreement whereby the defendants offered $5,600, and the plaintiff accepted the offer subject to obtaining the assent of Grace, and of the court if necessary, both signing this memorandum at the end.
Assuming that this is the true view of the contract, we have to inquire what would be the duty and obligation of the defendants under it, since the plaintiff could not obtain the assent of Grace. Would the agreement have the effect to bind the defendants absolutely, but the plaintiff only conditionally ? Would it enable the plaintiff to hold the defendants by their offer, although he was unable to fulfil the condition by which he himself would become bound ? In other words, would the defendants be bound to take the lease without the assent of Grace to its assignment ? It seems to us that the assent of Grace is made a condition of the contract’s taking effect. The element thus introduced in connection with the plaintiff’s acceptance affects the promise of each party. The contract is to become effectual provided Grace assents. It is as if the plaintiff had written, “ I accept your offer, but our contract is subject to obtaining Grace’s assent.” The plaintiff knew that the lease which he had to assign was valueless if the conditions which it contained relative to alterations had been violated. He could not sell it so as to convey any title. Nor did the defendants wish to purchase if no title was conveyed. It is not likely that the defendants would mean to bind themselves to buy and pay for the lease without Grace’s assent, if it was made known that the plaintiff would not agree to sell and assign it without such assent. See Love v. Sortwell, 124 Mass. 446" court="Mass." date_filed="1878-05-25" href="https://app.midpage.ai/document/love-v-sortwell-6419253?utm_source=webapp" opinion_id="6419253">124 Mass. 446.
This is not like the case of an option, which, when accepted, becomes binding upon both parties. Nor is it like the case of a contract which is made conditional on a future event, which has
What has heretofore been said relates to the construction of the contract; but there is another phase of the case relating more especially to the remedy. If the form of the contract is such that the defendant has bound himself absolutely, but the plaintiff has not bound himself, a court of equity is slow to lend its aid to enforce such a contract in favor of the party who is not bound. If at the time of bringing his bill, the plaintiff was not bound to convey, a court of equity will not ordinarily compel a defendant under such circumstances to accept a title. There must be a mutuality of obligation, or the court refuses to interfere. See Beach, Eq. Jur. §§ 585-587 ; Butman v. Porter, 100 Mass. 337" court="Mass." date_filed="1868-11-15" href="https://app.midpage.ai/document/butman-v-porter-6415525?utm_source=webapp" opinion_id="6415525">100 Mass. 337; Marble Co. v. Ripley, 10 Wall. 339" court="SCOTUS" date_filed="1870-12-19" href="https://app.midpage.ai/document/marble-co-v-ripley-88266?utm_source=webapp" opinion_id="88266">10 Wall. 339, 359; Wylson v. Dunn, 34 Ch. D. 569, 577, 578. The consent of Grace not having been obtained, there never was a moment prior to the filing of this bill when the plaintiff was bound to assign the lease to the defendants. If it had so happened that the defendants were willing to take their chances in respect to Grace, but the plaintiff wished not to assign the lease, the defendants could not have compelled him to do so. The provision “ subject to obtaining the assent of Mr. Grace ” would protect him.
Under such circumstances, the plaintiff is not entitled to the assistance of a court of equity. It does not avail the plaintiff to say that Grace’s consent may be compelled by a decree in this case. The question is, Were the defendants bound at the time of filing the bill to accept the title? See Ely v. McKay, 12 Allen, 323 ; Beach, Eq. Jur. § 585, and cases cited.
For these reasons, the demurrers must be
Sustained.