The plaintiff's reply to the defendant's offer of certain stock at a specified price, that he would pay the price if the defendant had actually received a similar offer from others, as stated in her letter, and would give him their names, was a rejection of the defendant's offer and a new proposal. The defendant was at liberty to withdraw the offer after the plaintiff had mailed the new proposal and before the defendant had received it. A contract between stockholders in a corporation owning more than half of its stock, to vote their stock the same way and control the affairs of the corporation according to a specified plan for a term of years, is unlawful. A contract between two stockholders, that if one of them should die within a specified period the survivor should have a prior right to purchase the deceased one's stock, is not unlawful.
CARPENTER, J.
No contract for the 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 July 6 was a rejection of Mrs. Scott's offer, and a new proposal. Benj. Sa., s. 39. To this 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acceptance of her offer, it was ineffectual, because too late; it was made after he had notice that the offer was withdrawn.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 [dispatched] 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 she had neither actual nor constructive knowledge of the condition. She made the public post her agent to receive from the plaintiff an unqualified acceptance of her offer, but not to receive a counter proposal or conditional acceptance. She was not chargeable with knowledge of the condition until she received the letter. 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 survivor 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.
CLARK, J., did not sit: the others concurred.