Hulbert v. Atherton

Day, J. The testimony introduced on behalf of the plaintiff tends to establish the following facts: About June, 1872, the plaintiff received a letter from the defendant in which he said that, without looking the matter over thoroughly, he had concluded to make plaintiff an offer of $800 for his interest in the concern, and would pay him that amount. The plaintiff thereupon wrote a letter to his brother-in-law, Mr. Amsden, of Dubuque, requesting him to see Mr. Atherton, and if he felt that that was the best plaintiff could do, to accept the offer. Upon receipt of the letter Mr. Amsden went to Mr. Atherton, and either read the letter to him, or told him its contents, and tried to get him to admit that the plaintiff ought to have more than $800, and then accepted his offer. The court properly instructed the jury that it must be established that Davis, as the remaining partner in the firm, agreed that plaintiff’s interest on retiring should be $800, that this agreement on the part of the defendant was in -writing, and also that plaintiff accepted the defendant’s offer in writing. The letter of the defendant, according to the testimony of the plaintiff, was a mere offer, not binding upon either party until accepted. The letter written by plaintiff to Amsden was in [93] no sense an acceptance of defendant’s offer. It was simply a constituting of Amsden as plaintiff’s agent, with directions to obtain better terms if he could, and if he became satisfied that he could not, to accept the defendant’s offer. Amsden does not make any claim that he accepted the defendant’s offer in writing. If he accepted it at all, the evidence shows that it was a mere verbal acceptance. "Where a proposition is in writing and the acceptance is verbal, the contract is an oral contract. See Commissioners of Mason County v. Sheply, Albany Law Journal, February 18th, 1882, and authorities cited; Wright v. Weeks, 25 N. Y., 153. As the contract sued upon was in parol, and the action was not instituted until nearly nine years after the alleged acceptance of defendant’s offer, it follows that the action is barred by the statute of limitations. The verdict is not sustained by the evidence, and, upon that ground, the court should have set it aside. This view of the case renders it unnecessary to consider the other errors assigned. Eeversed.