
    
      Western District
    
    ERIKSON ASSOCIATES, INC. v. LEONARD H. PALMER
    Argued: Dec. 17, 1969
    Decided: Dec. 31, 1969.
    
      Present: Garvey, P.J., Sloan Dudley, J.J.
    Case tried to Allen, J., in the Central District Court of Worcester
    No. 159655.
   Garvey, P.J.

In this contract action there was a finding for the plaintiff and damages assessed in the amount of $400.00. The defendant claimed a report.

The reported evidence shows that on September 30, 1967 the defendant signed the face side of the plaintiff’s printed form in which the plaintiff, for a stated price, “proposes to furnish material and labor” for the installation of aluminum siding on the defendant’s home in Shrewsbury. The work was to be done, at the plaintiff’s discretion, within six months. One “R. LaFlamme” who wrote the specifications, the terms of payment, and other details signed the face side as a “sales representative”. The face side had a line opposite the line on which the defendant signed under which appeared: “Accepted: ERICKSON ASSOCIATES INCORPORATED”. The proposal further provided that the defendant “proposes to furnish labor and material to complete the above order for the amount specified subject to conditions printed on the reverse side, which are hereby made a part of this agreement”, (emphasis supplied) .

On the reverse side, the sixth printed clause reads: “This contract subject to approval by officer of the company”. Although it appears that R. LaFlamme who signed as a sales representative was the principal officer of the plaintiff company he never signed the “contract” as such and withheld this information, for some unknown reason, from the defendant. Sometime in the latter part of December, 1967 the plaintiff ordered some of the material to be used and in March of 1968 when it was prepared to commence the work it found it had been done by another company. It then brought this action for breach of contract.

We are of opinion that there was error in the judge’s denial of the defendant’s request for a ruling of law that there was merely an offer by the defendant, never accepted by the plaintiff, to have it do the work.

This case is governed by Kuzmeskus v. Pickup Motor Co., Inc., 830 Mass. 490. There the plaintiff signed orders to buy school busses from the defendant and gave it a deposit of $1,000.00. Each order, prepared by the general manager of the defendant, was subject to the provision that “This order is not binding unless authorized by an officer of the company and purchaser credit has been OK’d by Finance Company”. The following morning before acceptance by the defendant the plaintiff cancel-led the orders and sued to recover his deposit. At page 493 of its opinion the court in ruling the plaintiff was entitled to the return of his deposit said:

‘ ‘ On these facts no contracts were completed by the delivery of the orders to the defendant. The defendant made it clear to the plaintiff that it did not intend to be presently bound, and on his part the plaintiff could not have expected to be bound until the proposed sales were subsequently authorized in accordance with the imposed conditions. A promise made with an understood intention that it is not to be legally binding, but only expressive of a present intention, is not a contract. Wellington v. Apthorp, 145 Mass. 69, 74. See Farnum v. Whitman, 187 Mass. 381, 383. The presentatian of the forms for the plaintiff to sign was no more than an invitation or request to give orders on the terms and conditions therein stated. See Montgomery Ward & Co. v. Johnson, 209 Mass. 89, 91; Mellen v. Johnson, 322 Mass. 236. The indication by the defendant of a willingness to receive proposals did not ripen into any contract or contracts until the proposals were accepted. Cronin v. National Shawmut Bank, 306 Mass. 202, 210. Before such acceptance had been communicated to the plaintiff his orders had been withdrawn or revoked. Bishop v. Eaton, 161 Mass. 496, 500. Cruver Manuf. Co. v. Rousseau, 240 Mass. 168,169. If the general manager was an officer of the company with power to authorize the sales, he said or did nothing to inform the plaintiff that he was taking favorable action. See West v. Platt, 127 Mass. 367, 372; Hobbs v. Massasoit Whip Co., 158 Mass. 194, 197; Bohn Manuf. Co. v. Sawyer, 169 Mass. 477, 482. The negotiations having fallen short of a binding agreement (Phoenix Spring Beverage Co. v. Harvard Brewing Co., 312 Mass. 501, 506), the plaintiff is entitled to the return of his deposit with interest.” See also Tilo Roofing Company, Inc. v. Pellerin, 331 Mass. 743.

Michael H. Selzo of Worcester for the defendant.

The finding for the plaintiff is to be vacated and judgment ordered for the defendant.

Mountain, Dearborn & Whiting of Worcester for the plaintiff. 
      
       Agreed by counsel at argument.
     