(D.C. Civil Action No. 72-278) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Biggs, Gibbons, and Rosenn, Circuit Judges.
This is an appeal from an order of the United States District Court for the Eastern District of Pennsylvania granting defendant's motion for summary judgment on two counts of plaintiffs' six-count complaint. Plaintiffs, Forrest Murphy, Virginia W. Murphy, Forrest J. Murphy, Jerry J. Murphy, and Mary V. Murphy, d/b/a Utah Oil Land Company (Murphy)*fn1 brought this diversity action alleging various causes of action against four defendants. This appeal involves the first two counts of the complaint, charging one of the four named defendants, Leonard Landsburg (Landsburg), both individually and as Trustee of the Estate of Adolph L. Tafel, with breach of contract.*fn2 After considering the contentions of the parties, we affirm the judgment of the district court.
In April 1971 Landsburg, as trustee of the Estate of Adolph L. Tafel, deceased, owned 750 shares of the common stock of Boericke & Tafel, Inc. (B&T). These shares constituted 54.94% of the outstanding stock of the corporation. Under the by-laws of B&T, 60% of the common stock was required for control.
By written proposal dated July 7, 1971, Murphy submitted an offer to Landsburg to purchase all of the outstanding shares of B&T at a price of $240 per share. The offer provided that payment would be made within one week "after the effectuation of full operating control of the business by the purchasers" and additionally, that:
If the number of shares tendered in response hereto is less than the number of shares required to effect a complete liquidation of the B&T Corporation then this offer may be declared by the purchasers to be null and void.
The offer stated it was to be effective until August 16, 1971, subject to extension at the option of the purchaser.
Two days later Landsburg, acting through his attorney, accepted by letter the offer as to the 750 shares held by the Trust at a price of $250 per share. Landsburg additionally agreed to tender Murphy's proposal to all B&T minority shareholders "to make [Murphy's] proposal effective." The acceptance was subject to the approval of the Orphans' Court of Philadelphia County.
Murphy's written reply, dated July 13, 1971, confirmed the new price of $250 per share and the condition of Orphans' Court approval.
In an effort to acquire a controlling interest in B&T, Landsburg, on July 30, 1971, made a tender offer to purchase the stock of the minority stockholders of B&T. He was unsuccessful in securing any affirmative response.
By letters dated August 9, September 13, and November 2, 1971, Murphy ultimately extended the expiration date of the proposal to December 1, 1971.
On November 23, 1971, Murphy telephoned Lawler, Landsburg's attorney, and told him that he did not want to delay the closing any further and was prepared to purchase the 750 shares of B&T stock for $187,500 and waive the condition of control. Although disputed, Lawler claimed that he told Murphy to put the waiver in writing. ...