Smith v. Gowdy

90 Mass. 566

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1864
• Status: Published

Opinion

Metcalf, J.

These exceptions cannot be sustained. The evidence introduced by the plaintiffs, at the trial, failed to prove that the defendants made the contract with them for the breach of which their action was brought. That evidence consisted of three letters. The first was from the plaintiffs to the defendants, merely inquiring what were the quantity and price of rags which they had on hand. The second was the defendants’ reply to the first, merely stating the quantity of rags which they had, and the price thereof. Thus far there was no offer of one party to buy, nor of the other party to sell. The third letter was from . the plaintiffs, saying to the defendants that they would take the rags at the price which the defendants had named. This was the first offer in the case; and this offer the defendants never accepted in writing. And an oral acceptance, if they had made it, would not have bound them ; the case being within the statute of frauds, (Gen. Sts. c. 105, § 5,) no part of the rags having been accepted and received by the plaintiffs, and nothing having been given by them in earnest to bind the bargain, or in part payment. It is clear, therefore, that no contract was completed; there having been no assent to a sale by the union of both parties’ minds. No authorities need be cited in support of this elementary doctrine. Exceptions overruled.