Lawrence v. Rosenberg

Crosby, J. These are suits in equity brought for specific performance of an alleged contract to purchase a parcel of land with buildings thereon at 100 ICinsgton Street in Boston. The bill in the first suit sets forth an oral contract, evidenced by a memorandum in writing consisting of four letters. In the second suit the bill alleges that a written contract was made between the parties and is embodied in the letters above referred to. Demurrers filed by the defendant in each case were sustained, and a final decree was entered dismissing the bill with costs, from which the plaintiffs appealed. The right of the plaintiffs to specific performance in either suit cannot be decreed unless an enforceable contract is shown by the letters, which are set out above. The letter from the defendant’s broker, Wachsman, to Welch, dated January 20, 1920, does not purport to be an absolute and unconditional offer; the statement therein by the writer that he “will be pleased to cause a substantial deposit to be made on an agreement,” plainly indicates that further negotiations were contemplated. The letter written by Welch in reply dated January 27, suggests that a deposit of $.2,000 be' made, and that it is to be returned if the sale [141] is not consummated. The letter of January 29, from the defendant to his broker, Wachsman, authorized the latter to give $2,000 of his own money to Mr. Welch as trustee, as a deposit in accordance with the re'quest contained in his letter of January 27. The last letter, dated February 6, 1920, from Welch to Wachsman, is claimed by the plaintiffs as an acceptance of an offer made in the first letter dated January 20. If we assume that there is a sufficient memorandum to satisfy the statute of frauds, the question remains whether a mutual agreement for a sale and purchase was entered into by the parties by the correspondence which was concluded by the letter of February 6. In determining that question the letters must be considered together. If the letter of January 20 be regarded as a definite offer to purchase the property for $400,000, it is to be presumed to be an offer of that amount in cash where no other method of payment is referred to. Ryan v. Hall, 13 Met. 520, 523. Dixon v. Williamson, 173 Mass. 50, 52. It is an elementary principle in the law of contracts that in order to constitute a valid agreement the acceptance must be in accordance with the terms of the offer. If the first letter can be construed as containing an unconditional offer, the acceptance was not an absolute, unqualified acceptance of that offer, but provided that an agreement of sale should be entered into with a deposit of $10,000 by the defendant, and also provided as follows: that the deed of the premises should convey a “good and clear title free from all encumbrances, except passageway rights, party wall agreements and restrictions of record, and lease to Blodgett, Ordway & Webber, expiring January 1, 1923 and taxes. It is understood that a broker’s commission, according to the rules of the Boston Real Estate Exchange, is to be paid to you [the defendant’s broker] in the event that this sale is completed, but not otherwise.” It is plain that the acceptance by the plaintiffs was not an unconditional acceptance of the terms of the offer; it was rather in the nature of a new offer, or counter proposal, and in order to become a contract would have to be accepted by the defendant. Metropolitan Coal Co. v. Boutell Transportation & Towing Co. 185 Mass. 391. An acceptance which stipulates that the premises are to be sold subject to passageway rights, party wall agreements and restrictions of record, an outstanding lease and unpaid taxes, falls far short of [142] an unqualified acceptance of the offer. In these circumstances it is clear from the correspondence that the minds of the parties never met respecting the purchase and sale of the estate. Gowing v. Knowles, 118 Mass. 232. Harlow v. Curtis, 121 Mass. 320. Stoddard v. Ham, 129 Mass. 383. Putnam v. Grace, 161 Mass. 237, 245. Williams v. Smith, 161 Mass. 248. Metropolitan Coal Co. v. Boutell Transportation & Towing Co. supra. Wheaton Building & Lumber Co. v. Boston, 204 Mass. 218. Bradley v. Haven, 208 Mass. 300, 302. Stroock Plush Co. v. New England Cotton Yarn Co. 213 Mass. 354, 359. It follows that on the face of the bill no agreement binding the defendant was entered into. In view of the conclusion reached it is unnecessary to consider the other grounds of demurrer relied on by the defendant. The entry in each case must be Decree affirmed with costs.