Wiessner v. Ayer , 176 Mass. 425 ( 1900 )

Barker, J.

The action is for breach of an alleged agreement of the defendants to take a lease from the plaintiff of certain parts of a building for a term of five years. The verdict for defendants was ordered upon the ground that the evidence would not justify a finding that there was sufficient memorandum signed by the defendants, the statute of frauds having been pleaded.

It was conceded that there had been a written offer, and the plaintiff contended that this offer had been amended by the defendants by telephone.

The written offer was to take the premises for five years at a rent payable quarterly. The plaintiff did not contend that this offer had been accepted. His contention was that before acceptance the offer had been so amended by telephone that the rent should be “ paid in semi-advance monthly instalments.” His own acceptance was not of the written offer. There is no dispute that the words “ Yes. Your offer is accepted,” spoken by the plaintiff’s agent to the defendants on December 27, and the letter written later upon the same day, did not refer to the written offer as it was made.

This being so, it follows that the written offer was never accepted, either by paroi or in writing. If the defendants did amend their offer by telephone, the acceptance of the amended offer did not make a contract good against the statute of frauds, because one essential term of the agreement to be performed was not stated otherwise than by paroi. The plaintiff could not recover on the written offer, because he had not accepted it. He could not recover upon the amended offer, because no sufficient memorandum of its terms had been signed by the defendants.

The doctrine of. substituted performance for which the plaintiff contends, citing Cummings v. Arnold, 3 Met. 486, and the cases in which it has been followed, has no application, because no contract, good under the statute, has been entered into. See also Stearns v. Hall, 9 Cush. 31; Lerned v. Wannemacher, 9 Allen, 412, 419; Whittier v. Dana, 10 Allen, 326; Hastings v. Lovejoy, 140 Mass. 261, 264; King v. Faist, 161 Mass. 449.

Exceptions overruled.