Unpublished Disposition, 930 F.2d 26 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 26 (9th Cir. 1989)

COMDISCO, INC., a Delaware corporation Plaintiff,v.XEROX CORPORATION, a New York corporation,Defendant-Cross-Claimant/Appelleev.Thomas W. DEVANEY, Defendant-Cross-Defendant/Appellant.

No. 89-55982.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 6, 1990.Decided April 12, 1991.

Before HUG, CANBY and WIGGINS, Circuit Judges.


Thomas Devaney appeals from the judgment of the district court for Xerox and against Devaney for specific performance of a global settlement agreement among Comdisco, Devaney, Xerox, and others. Devaney also appeals the district court's denial of his request for a jury trial. We affirm.

Devaney argues that Xerox rejected his settlement offer on March 16, 1989, by proposing a "counter-offer". Xerox asserts that its communication constituted an acceptance with a mere inquiry regarding additional security, thus binding Devaney to the terms of his settlement offer. We agree with the district court that Devaney's March 8, 1989, settlement offer was not rejected by Xerox's March 16, 1989, inquiry.

Under California law, a valid "acceptance must be absolute and unqualified." Cal.Civ.Code Sec. 1585. A qualified acceptance constitutes a rejection terminating the offer; it is a new proposal or counter-offer which must be accepted by the former offeror now turned offeree before a binding contract results. Glende Motor Co. v. Superior Court, 159 Cal. App. 3d 389, 395, 205 Cal. Rptr. 682, 686 (1984). This rule, however, should be applied so as not to stifle settlement negotiations. Id. at 398, 205 Cal. Rptr. at 688 n. 12. "A mere inquiry regarding the possibility of different terms, a request for a better offer, or a comment upon the terms of the offer, is ordinarily not a counter-offer." Id. (citing Restatement (Second) of Contracts, Sec. 39, comment b).

In the present case, the communications between Xerox and Devaney were oral, and each party subsequently interpreted the communications to its own advantage. The district court accepted Xerox's characterization that the March 16th conversation relating to Devaney's willingness to stipulate to a judgment was a mere inquiry by Xerox, not constituting a rejection of Devaney's settlement offer. The surrounding circumstances support this characterization and we accept it. Once that determination is made, the evidence permits no conclusion other than that Xerox had accepted Devaney's offer by March 16th, 1989.1 

devaney also contends that the district court erred in denying his request for a jury trial of Xerox's cross-claim against him for specific performance of the settlement agreement with Comdisco.2  The district court properly denied this request.

Where an action is wholly for equitable relief, there is no right to a jury trial. Fed. R. Civ. P. 39(a). Xerox's action for specific performance without a claim for damages is purely equitable and was properly tried to the court. See Adams v. Johns-Manville Corp., 876 F.2d 702, 709 (9th Cir. 1989). This is so even though Devaney, the party resisting specific enforcement, disputes the formation of the contract. Id. at 710 (citations omitted).

The judgment of the district court is AFFIRMED.


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


In light of our resolution of this issue, we find it unnecessary to address Xerox's argument based on promissory estoppel


The right to a jury trial in federal court is to be determined as a matter of federal law. Byrd v. Blue Rural Electric Cooperative, Inc., 356 U.S. 525, 538-40 (1957)