Harris v. Scott

32 A. 770, 67 N.H. 437

Opinion

Carpenter, J.

No contract for tlie sale of the shares to the plaintiff was completed. His acceptance of Mrs. Scott’s offer was conditional. Their minds did not meet. If without disclosing the names of those who had offered her $800 a share, she had signed and returned to the plaintiff the bill of sale, he would have had the right to reject it and decline to take the stock. His letter of JulvWwas a rejection of Mrs. Soottls^ofl'er. and a, new prdplisa]),^JI.enjrSaN¿^9r'^Trd'rWis proposal she did not assent. If the’plaintiff’s letter of the next day was an unconditional acceptance of her offer, it was ineffectual, because too late; it was made after he had notice that the offer was withdrawn. If when she despatched the telegram she had known the contents of the plaintiff’s letter of July 5, it might be evidence tending to show that she did not object to the acceptance on the ground that it was conditional. But at that time sheAia.d neit.hgu-a.r».tna.l per ,cons tractive knowledge^^Im“eondItiOT., She made the poslbhelr^gefft to recave fromTEe plaintiff an unqualified acceptance of her offer, but not to receive a counter proposal or conditional acceptance. _She was not chargeable with knnwlc.dge.xJf the condition until she receiveiLLlie hiLTer. Byrne v. Tienhoven, 5 C. P. Div. 344; Dunlop v. Higgins, 1 H. L. Ca. 381; Household Ins. Co. v. Grant, 4 Exch. Div. 216, 221, 228; Benj. Sa., ss. 68-75; Abbott v. Shepard, 48 N. H. 14.

The plaintiff is not entitled to a decree requiring Mrs. Scott to give him now, or at any time, the prior right to purchase the stock. The contract of March 5, 1888, was unlawful. Northern Railroad v. Railroad, 50 N. H. 166, 179, 180; Fisher v. Railroad, 50 N. H. 200, 205, 206, 209-211 ; Woodstock Iron Co. v. Richmond Extension Co., 129 U. S. 643; West v. Camden, 135 U. S. 507, 520, 521; Fuller v. Dame, 18 Pick. 472; Guernsey v. Cook, 120 Mass. 501; Woodruff v. Wentworth, 133 Mass. 309; Mor. Corp., ss. 516-519. The contract of October 8, 1890, in so far as it provides for the survivor’s prior right to buy the shares, is not in itself unlawful. Whether it is so connected with the previous contract as to be tainted with its illegality is a question not considered. If it is construed literally, it was broken when Scott died without leaving, by will or otherwise, directions that the plaintiff should have a prior right over any other party to purchase the shares; and the plaintiff’s remedy for the breach is by action at law. Assuming that it may properly be construed as an agreement that the sur vivor should have the prior right to purchase the shares of the legal representatives of the deceased party, and that such an agreement is not a testamentary disposition of property (Towle v. Wood, 60 N. H. 434), the plaintiff has already received all that the contract secured to him. An opportunity to buy the shares at the price for which they were finally sold was offered to him and rejected.

Bill dismissed.

Claiík, J., did not sit: the others concurred.