The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief Judge
MEMORANDUM-DECISION AND ORDER
On July 27, 2006, after a six-day trial, the jury returned verdicts of no cause for action in both of these two consolidated cases. On July 28, 2006, the clerk entered judgment on the verdict in 02-CV-846, Dale R. Brodeur, Sr., Dale R. Brodeur, Jr., and Cindy Brodeur v. William Brodeur.
No jury demand had been filed in 02-CV-823, Dale Brodeur, Sr. v. McNamee, William Brodeur, and Northeast Fabricators, LLC, and thus the Court treated the jury verdict as advisory. After discharging the jury, the Court ruled from the bench that, based on the evidence at trial, it concurred in the advisory verdict in 02-CV-823, and that a written decision would follow. The Court now issues its findings of fact and conclusion of law.
The Court assumes that the reader is familiar with the general background of the case. In action 02-CV-823, a breach of contract action based on a typewritten document dated July 24, 1997, the Court charged the jury as follows:
Plaintiff Dale R. Brodeur, Sr., claims that the July 24, 1997 document constitutes a binding contract. He claims that he, Dale Brodeur, Jr. and Cindy Brodeur accepted defendants' offer to enter into the July 24, 1997 agreement, by signing and returning it in late August 1997. He further claims that defendants Sean McNamee, William Brodeur, and Northeast Fabricators, L.L.C. breached the July 24, 1997 agreement when McNamee interposed a counterclaim against Dale Brodeur, Sr. in April 2001, in McNamee's amended answer in an action brought by Dale Brodeur, Sr. in Delaware County Supreme Court in June 2000. In the present action, Dale Brodeur, Sr. claims that all three defendants were obligated under the July 24, 1997 agreement to hold him harmless, and that they failed to do so in the Delaware County action.
Sean McNamee, William Brodeur, and Northeast Fabricators claim that the July 24, 1997 document never became a binding contract. They argue that the document reflected their offer to enter into a contract, and that Dale Brodeur, Sr. either explicitly rejected it, or did not accept it within a reasonable time. These defendants assert that they signed the July 24, 1997 document, and sent it to Dale Brodeur, Sr. or his representative on July 28, 1997. They claim that Dale Brodeur, Sr. explicitly rejected the offer by letter from attorney Frederick Griffen dated July 29, 1997. They further claim that they had no indication that defendants accepted it until April 17, 1998, when their attorney received a letter from Dale Brodeur, Sr.'s attorney James Kauffman. They argue that under all of the circumstances, this did not constitute acceptance within a reasonable time.
Also, they argue that even if a binding contract did come into existence, Dale Brodeur, Sr. breached it by suing them in Delaware County Supreme Court in June 2000, thus failing to hold them harmless as he was obligated to do under the July 24, 1997 document. They argue that this breach by Dale Brodeur, Sr. freed them from any obligations to him under the contract, including any obligation to hold him harmless thereafter. *** You must first consider whether plaintiff Dale Brodeur, Sr. has proven by a preponderance of the evidence that a binding contract was formed, that is, whether plaintiff has proven that he assented to the contract within a reasonable time. In this respect, you may consider his intent as indicated by his words and acts. If you find that a binding contract was created, you must then consider whether plaintiff has proven by a preponderance of the evidence that he performed his obligations under the contract up until the time of defendants' alleged breach. Finally, if you find that plaintiff has proven that he performed, you must then determine whether one or more of the defendants breached the contract by failing to perform their part of the bargain. If you find that plaintiff has proven all of these three elements -- that there was a binding contract, that plaintiff performed, and that one or more of the defendants failed to perform -- then you will return a verdict in favor of plaintiff against the breaching defendant or defendants on the July 24, 1997 document. If plaintiff has not carried his burden of proving any one or more of these elements with respect to each defendant, then you will return a verdict in favor of that defendant on the July 24, 1997 documents.
The verdict sheet set forth the following three questions with respect to action 02-CV-823:
A. Has plaintiff proven by a preponderance of the evidence that a binding contract was formed?
B. Has plaintiff proven by a preponderance of the evidence that he performed his obligations under the contract up until the time of defendants' alleged breach?
C. Has plaintiff proven by a preponderance of the evidence that defendants breached the contract by failing to ...