Peretz v. Watson

Massachusetts Appeals Court

Peretz v. Watson

324 N.E.2d 908, 3 Mass. App. Ct. 727, 1975 Mass. App. LEXIS 750

CourtMassachusetts Appeals Court

DecidedMarch 28, 1975

StatusPublished

Cited by8 cases

This text of 324 N.E.2d 908 (Peretz v. Watson) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Peretz v. Watson, 324 N.E.2d 908, 3 Mass. App. Ct. 727, 1975 Mass. App. LEXIS 750 (Mass. Ct. App. 1975).

Pincite

Opinion

In this action to recover the deposit made by the plaintiffs when they offered to lease premises from the defendants, the defendants contend that the trial judge erred (1) in granting the plaintiffs’ motion to strike various findings of the auditor to whom the case was originally referred and (2) in instructing the jury to which the case was subsequently tried (and which returned a verdict for the plaintiffs) as to the legal effect of a counteroffer claimed to have been made by the defendants. 1. Paragraphs 2 and 3 of the auditor’s report were properly struck because the former was confined to matters irrelevant to the issues in the case and the latter was nothing more than a ruling [728]*728of law. Badolota v. New York, N. H. & H. R.R. 338 Mass. 421, 428 (1959). Paragraphs 1 and 4, to the extent that they contained other than conclusions of law (ibid.) or conclusions of fact unsupported by adequate subsidiary findings (Milch v. Boston Consol. Gas Co. 341 Mass. 230, 233 [1960]; Metevia v. Athol, 348 Mass. 274, 282-283 [1964]; Lurensky v. Marvel Heat Corp. 1 Mass. App. Ct. 855 [1973]), were a mere recitation of facts conceded at the jury trial (and, in the case of paragraph 4, of what was alleged in the plaintiffs’ declaration), and their deletion from the auditor’s report could not have prejudiced the defendants in any way. 2. The judge was correct in instructing the jury that a purported acceptance which varies from the terms of the offer in any material respect is in effect a rejection (Moss v. Old Colony Trust Co. 246 Mass. 139, 148 [1923], and cases cited), and that an offer once rejected cannot thereafter be revived by an attempted acceptance thereof (Restatement, Contracts §35, illustration 1. [1932]; compare Daddario v. Milford, 296 Mass. 92, 95-96 [1936]). It follows that judgment must be entered on the verdict returned by the jury.

The case was submitted on briefs. Charles E. Frazier, Jr., for the defendants. Thomas R. Murtagh for the plaintiffs.

So ordered.

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In this action to recover the deposit made by the plaintiffs when they offered to lease premises from the defendants, the defendants contend that the trial judge erred (1) in granting the plaintiffs’ motion to strike various findings of the auditor to whom the case was originally referred and (2) in instructing the jury to which the case was subsequently tried (and which returned a verdict for the plaintiffs) as to the legal effect of a counteroffer claimed to have been made by the defendants. 1. Paragraphs 2 and 3 of the auditor’s report were properly struck because the former was confined to matters irrelevant to the issues in the case and the latter was nothing more than a ruling [728]*728of law. Badolota v. New York, N. H. & H. R.R. 338 Mass. 421, 428 (1959). Paragraphs 1 and 4, to the extent that they contained other than conclusions of law (ibid.) or conclusions of fact unsupported by adequate subsidiary findings (Milch v. Boston Consol. Gas Co. 341 Mass. 230, 233 [1960]; Metevia v. Athol, 348 Mass. 274, 282-283 [1964]; Lurensky v. Marvel Heat Corp. 1 Mass. App. Ct. 855 [1973]), were a mere recitation of facts conceded at the jury trial (and, in the case of paragraph 4, of what was alleged in the plaintiffs’ declaration), and their deletion from the auditor’s report could not have prejudiced the defendants in any way. 2. The judge was correct in instructing the jury that a purported acceptance which varies from the terms of the offer in any material respect is in effect a rejection (Moss v. Old Colony Trust Co. 246 Mass. 139, 148 [1923], and cases cited), and that an offer once rejected cannot thereafter be revived by an attempted acceptance thereof (Restatement, Contracts §35, illustration 1. [1932]; compare Daddario v. Milford, 296 Mass. 92, 95-96 [1936]). It follows that judgment must be entered on the verdict returned by the jury.

The case was submitted on briefs. Charles E. Frazier, Jr., for the defendants. Thomas R. Murtagh for the plaintiffs.

So ordered.

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Bluebook (online)

324 N.E.2d 908, 3 Mass. App. Ct. 727, 1975 Mass. App. LEXIS 750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peretz-v-watson-massappct-1975.

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