Opinion
February, 1898.
G. Washburn Smith, for plaintiff.
Philip Carpenter, for defendant.
In an action for damages for a personal injury to an infant, the defendant, on the 2d of February, served on plaintiff's attorney an offer of judgment for $500 and costs. On the 8th of February, about 2 o'clock in the afternoon, plaintiff's attorney obtained an order of court authorizing the infant's guardian ad litem to accept the offer. About 3 o'clock of the same afternoon defendant's attorney sent to plaintiff's attorney a "notice of the withdrawal of the offer of judgment," which notice plaintiff's attorney promptly returned, with a denial of defendant's right to retract the offer. Thereafter, on the same afternoon, plaintiff's attorney served on defendant's attorney notice of acceptance of the offer, and immediately entered judgment for the amount of the offer. The defendant moved to set aside the judgment, and the question is: Was it open to it to withdraw the offer?
It is the rule, in the negotiation of contracts, that until acceptance an offer is revocable, for the reason that until the minds of the parties have met there is no binding agreement, and if there be no agreement they are equally free from obligation.
By section 738 of the Code "the defendant may, before the trial, serve upon the plaintiff's attorney, a written offer, to allow judgment to be taken against him;" and if, within ten days, the plaintiff return a written acceptance of the offer, he may enter judgment accordingly. Here is no mere treaty between parties, but a regulation of procedure; by which, on the one hand, the defendant is afforded an opportunity to escape the costs of litigation and the contingency of a larger judgment against him; while the plaintiff, on the other, is enabled to assure himself a recovery for at least some amount. It is a statutory provision; and it reserves no right of retraction to the defendant. On the contrary, ten days are secured to the plaintiff for acceptance of the offer — a plain implication that for that period the offer is to stand. If before the lapse of such time the defendant may withdraw the offer, then has plaintiff not had the ten days for acceptance accorded him by the act.
If we apply the canon noscitur a sociis in the interpretation of the provision, its intent is clear. Obviously, the tender authorized by sections 731-734 is irrevocable. So of the admission of the genuineness of a paper pursuant to section 735. The offers to liquidate damages and to compromise in the succeeding sections are no less incapable of recall. The defendant is under no obligation to make the offer; but having made it, the law holds him to it until by the expiration of the option allowed the plaintiff for acceptance he is restored to his original rights. McVicar v. Keating, 19 A.D. 581; Walker v. Johnson, 8 How. Pr. 240. Upon any other construction, the statute would become an instrument of trifling and chicane.
The right of the defendant after rejection of one offer to make another, is no way inconsistent with the conclusion that an offer may not be withdrawn before rejection.
Motion denied, with costs.