. During negotiations, "[a] substantial variation in contract terms incident to a purported acceptance is not a binding acceptance but a counter offer," Mass. Hous. Fin. Agency v. Whitney House Assocs., 638 N.E. 2d 1378, 1380-81 (Mass. 1994), while a "comment, purported clarification, or expression of dissatisfaction appended to an endorsement of acceptance" is considered a full acceptance. Id. at 1381.
" 1 Perillo, Corbin on Contracts (Ed.Rev. 1993), 456, Section 3.28. A reply to an offer that purports to accept but is conditional on the offeror's assent to additional or different terms is not an acceptance, but a counteroffer. Foster v. Ohio State Univ. (1987), 41 Ohio App.3d 86, 88. A reply to an offer that purports to accept the offer "with prejudice" or "under protest," or which adds a comment, a purported clarification, or an expression of dissatisfaction, is nonetheless a valid acceptance. 1 Perillo, Corbin on Contracts (Ed.Rev. 1993), 472-74, Section 3.30; see, also, Massachusetts Housing Finance Agency v. Whitney House Assoc. (1994), 37 Mass. App. Ct. 238, 241. Such acceptances are in the category of "grumbling acceptances," acceptances made without enthusiasm but acceptances nonetheless.
" A comment, purported clarification, or expression of dissatisfaction appended to ... an acceptance" does not constitute a counter-offer but instead a " grumbling acceptance" of the offered terms. Massachusetts Housing Finance Agency v. Whitney House Associates, 37 Mass.App.Ct. 238, 241 (1994). Where the parties have agreed to all material terms during preliminary negotiations, the fact that they also agreed to execute a subsequent formal instrument does not preclude the finding of a binding contract. McCarthy v. Tobin, 429 Mass. 84, 88 (1999).
Bell v. General Motors, No. 11-10905, 2012 WL 2680909, at *3 (E.D. Mich. July 6, 2012) (granting enforcement of settlement despite “under duress notation” where there was “no evidence that [plaintiff] was ever threatened in such a way that overcame her free will”); Parker v. Key Plastics, Inc., 68 F.Supp.2d 818, 826 (E.D. Mich. 1999) (granting enforcement of settlement despite “under duress notation” where duress claimed was “nothing more than economic pressure [which is] insufficient to demonstrate unlawful coercion”); Deluca v. Bear Sterns & Co., 175 F.Supp.2d 102, 114, 116 (D. Mass. 2001) (granting enforcement of settlement despite “under duress” notation where “[plaintiff] points to no action by [defendant's] employee which overcame her will in particular ... [plaintiff's] notation on the Agreement [is] such a ‘grumbling acceptance' ”); Mass. Hous. Fin. Agency v. Whitney House Assocs., 638 N.E.2d 1378, 1380 (Mass. App. Ct. 1994) (“[A] comment, purported clarification, or expression of dissatisfaction appended to an acceptance ... constitutes an acceptance nonetheless”).
"A substantial variation in contract terms incident to a purported acceptance is not a binding acceptance but a counter offer." Mass. Hous. Fin. Agency v. Whitney House Assocs., 638 N.E.2d 1378, 1380-81 (Mass. 1994). Consideration is "'a bargained-for exchange in which there is a legal detriment of the promisee or a corresponding benefit to the promisor.'"
aintiff's 'Signed under Duress' notation is nothing more than an expression of dissatisfaction with the paperwork he nevertheless signed"); Bell v. General Motors, No. 11-10905, 2012 WL 2680909, at *3 (E.D. Mich. July 6, 2012) (granting enforcement of settlement despite "under duress notation" where there was "no evidence that [plaintiff] was ever threatened in such a way that overcame her free will"); Parker v. Key Plastics, Inc., 68 F. Supp. 2d 818, 826 (E.D. Mich. 1999) (granting enforcement of settlement despite "under duress notation" where duress claimed was "nothing more than economic pressure [which is] insufficient to demonstrate unlawful coercion"); Deluca v. Bear Sterns & Co., 175 F. Supp. 2d 102, 114, 116 (D. Mass. 2001) (granting enforcement of settlement despite "under duress" notation where "[plaintiff] points to no action by [defendant's] employee which overcame her will in particular . . . [plaintiff's] notation on the Agreement [is] such a 'grumbling acceptance'"); Mass. Hous. Fin. Agency v. Whitney House Assocs., 638 N.E.2d 1378, 1380 (Mass. App. Ct. 1994) ("[A] comment, purported clarification, or expression of dissatisfaction appended to an acceptance . . . constitutes an acceptance nonetheless"). Although the Fifth Circuit and Texas courts have not addressed this precise issue, the undersigned agrees with the rationale of other federal and state courts that have considered the case of a "grumbling acceptance."
op.). See also Mass. Hous. Fin. Agency v. Whitney House Assocs., 37 Mass. App. Ct. 238, 241, 638 N.E.2d 1378, 1380-81 (1994) ("A substantial variation in contract terms incident to a purported acceptance is not a binding acceptance but a counter offer"), rev. denied, 418 Mass. 1110, 642 N.E.2d 301 (1994). This court finds the Plaintiffs' arguments to the contrary unpersuasive.
A "grumbling acceptance," that is, a comment, purported clarification, or expression of dissatisfaction appended to an acceptance, constitutes an acceptance nonetheless.Massachusetts Housing Finance Agency v. Whitney House Associates, 37 Mass. App. Ct.238, 241, 638 N.E.2d 1378, 1380 (1994). DeLuca' s notation on the Agreement is such a "grumbling acceptance."
In the Superior Court Haufler argued that his notation on the facsimile cover sheet delivered with the escrow agreement and deeds, see note 19, supra, substantially varied the terms of the escrow agreement and, therefore, was not a binding acceptance but rather a counteroffer. See Massachusetts Hous. Fin. Agency v. Whitney House Assocs., 37 Mass. App. Ct. 238, 241 (1994). See also Moss v. Old Colony Trust Co., 246 Mass. 139, 148 (1923) ("a conditional acceptance or one that varies from the offer in any substantial respect is in effect a rejection and is the equivalent of a new proposition").
October 31, 1994.Further appellate review denied: Reported below: 37 Mass. App. Ct. 238 (1994).