PETER J. HATHAWAY vs. RICHARD D. HATHAWAY.

MARTIN PERETZ & another vs. ALDREN A. WATSON & another.

3 Mass. App. Ct. 727

March 28, 1975

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

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of law. Badoloto 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 Section 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.

So ordered.