Cruver Manufacturing Co. v. Rousseau , 240 Mass. 168 ( 1921 )

Carroll, J.

On December 27, 1918, the defendant signed a written order for advertising material to be supplied by the plaintiff. One of its terms was that "This order is subject to acceptance by home office at Chicago, 111.” On January 6, 1919, the der fendant wrote from Fall River to the plaintiff that he had sold his business and wished" to cancel the order. The manager of the plaintiff, in one of his depositions, stated that on January 10, 1919, he wrote the defendant acknowledging the receipt of the letter of January 6, and urging the defendant to reconsider his decimation to carry out the contract. This letter was received by the defendant. In a second deposition the plaintiff’s manager claimed that on January 2, 1919, he sent a “verification sheet,” referring to said order, to the defendant by United States mail. He further testified that January 2 was the date when this order was accepted and passed to the manufacturing department. The defendant denied that he received this communication of January 2. The case was heard in the Superior Court by a judge sitting without a jury. He refused the plaintiff’s request that upon all the evidence the findings should be for the plaintiff, and found for the defendant. To the denial of its motion the plaintiff excepted.

It was incumbent on the plaintiff to prove that the defendant’s proposal was accepted and notice of acceptance sent to the defendant. The proposal of December 27, 1918, was not a contract binding on the parties until accepted by the plaintiff, and until it gave notice of such acceptance, the defendant could revoke the offer. See Smith v. Gowdy, 8 Allen, 566; Montgomery Ward & Co. v. Johnson, 209 Mass. 89; Kehlor Flour Mills Co. v. Linden, 230 Mass. 119; Bauman v. McManus, 10 L. R. A. (N. S.) 1138.

To complete the contract it was necessary for the plaintiff to communicate its acceptance to the defendant, see Bishop v. Eaton, 161 Mass. 496, 500. No question of law is open on the record; it was a question of fact and not a question of law whether the plaintiff accepted the order of the defendant and mailed its acceptance to him. The defendant testified that he never received the letter dated January 2, and in the first deposition of the plaintiff’s manager it did not appear that such a letter had been sent. The judge may not have believed the plaintiff’s testimony and he may have found as a fact, that this letter of January 2 was never mailed and that the plaintiff had not in fact accepted the defendant’s proposal when the defendant’s revocation of the order was received. These were questions of fact which cannot be reviewed and there was no error of law in denying the plaintiff’s motion.

Certain interrogatories answered by-the defendant, relating to the conversation with the plaintiff’s salesman, and giving the defendant the right to cancel the order, were offered in evidence by the plaintiff. The evidence of the defendant, that the plaintiff’s agent told him he could cancel the order if he changed his business, was admitted de bene, and was subsequently excluded. As we interpret the bill of exceptions, the judge excluded all this paroi evidence and decided the case without placing any reliance on it; and in our consideration of the case we have disregarded this testimony.

Exceptions overruled.