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Gruenspan v. Seitz11/24/1997
n making it does not intend to conclude a bargain until he has made a further manifestation of intent."
If the offer invites acceptance by performance, the acceptee fulfills the terms of contract by performing the acts stated in the contract. Bretz v. Union Cent. Life Ins. Co. (1938), 134 Ohio St. 171, 11 O.O. 587, 16 N.E.2d 272. Questions surrounding the form of an offer are resolved against the offeror because, it is said, the offeror is the master of his offer. See Restatement of the Law 2d, Contracts (1981) 83, Section 29, Comment a.
Seitz submitted documents showing that plaintiff agreed to compensate Seitz for any time spent in deposition. These include a letter from plaintiff in which he stated, "I am interested in meeting with you for only one-half hour and would compensate you for your time." After plaintiff withdrew the first subpoena, he and Seitz's attorney eventually agreed that the deposition would go forward without the need for a subpoena, and Seitz's attorney recalled that "[plaintiff] agreed to reasonably compensate Dr. Seitz, a board certified orthopedic surgeon, for his time in the deposition." Seitz's office manager testified at deposition that she expressly informed plaintiff of Seitz's terms prior to the deposition and that plaintiff "never disagreed" to those terms.
For his part, the deposition transcript tends to show that plaintiff did not necessarily agree to Seitz's terms. While plaintiff had made several promises to compensate Seitz if he agreed to be deposed, plaintiff ultimately secured Seitz's attendance at the deposition by asking the court to issue a subpoena.
We find that plaintiff's use of the second subpoena to secure Seitz's attendance at the deposition constituted an intervening act that negated or revoked any offer of compensation by plaintiff. Prior to having the court issue the subpoena, plaintiff tried to entice Seitz's voluntary presence at the deposition by offering to compensate Seitz for his time. Once he had the court issue the subpoena, plaintiff manifested an intent to revoke his offer of compensation to secure Seitz's voluntary attendance at the deposition. In our view, this constituted a clear revocation of the offer of compensation. The cross-assignment of error is overruled.
Judgment affirmed
KARPINSKI, P.J., and ROCCO, J., concur.
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