The defendant at the date of the lease upon which the plaintiff relies was in occupation of the premises, but whether *211as a tenant at sufferance or under a lease prior in time from one Reardon, the common landlord of the parties hereafter referred to as the lessor, is the principal question for determination. If the defendant has the older title, the plaintiff fails to establish a present right of entry and ejectment cannot be maintained. Page v. Dwight, 170 Mass. 29. Bradshaw v. Ashley, 180 U. S. 59.
It was undisputed that, being an occupant under a lease the term of which had expired, the defendant remained in possession while negotiations were pending for a further lease of the premises. The lessor, whose testimony was uncontradicted, stated that after an understanding had been reached “he drew up two signed copies of a lease and sent them to the defendant with a letter” requesting him to “sign one of the leases if correct . . .” But, instead of accepting, signing and returning the duplicate, the defendant by letter asked that an option of purchase be inserted cTuTesponding with a similar clause in the lease which had expired. iTcross proposal however is not an acceptance. It does not of itseff conititufe a contract, as the parties were not in accord and circumstances that delivery by’the lessor”depended upon the defendant’s acceptance, to be shown by his signature and return of the duplicate, and that the lessor until acceptance had the right to withdraw from the proposed contract. Metropolitan Coal Co. v. Boutell Transportation & Towing Co. 185 Mass. 391, 395.
The parties after some correspondence never having agreed upon any change in the instrument as drafted, the lessor notified the defendant that he had decided not to renew, and thereupon the defendant replied by returning the duplicate duly executed, with a check for the rent which by the terms of the lease had accrued. By the correspondence which immediately followed the lessor informed the defendant “that the return of the lease is too late and that your check is credited your account as tenant on sufferance,” and the defendant in reply notified the lessor that the lease “was signed within a few days after being received and then held awaiting your reply to my letter as to having the buying option clause inserted. The fact that your lease was in my possession doesn’t give you any grounds for your back water. And I shall hold you to it and expect your fulfilment as you do of me.”
The notification, coupled with the execution and return of the *212duplicate, apparently led the trial judge, subject to the plaintiff’s exceptions, to submit to the jury the questions, whether the defendant accepted the lease with the understanding that it was in force before he received the letter of withdrawal, and whether the defendant executed the lease with the understanding that it was in force before he received the letter of withdrawal, which having been answered in the affirmative, a verdict for the defendant was ordered. But acts not communicated to the other party are insufficient to constitute an acceptance, and the secret designs or purposes of the defendant to obtain the option if he could, and upon failure to obtain it then to take what had been offered, cannot be made the basis of an enforceable contract where the contract is conditioned to take effect upon a mutual understanding and agreement. Stoddard v. Ham, 129 Mass. 383, 385. O’Donnell v. Clinton, 145 Mass. 461, 463. Madden v. Boston, 177 Mass. 350. Nor could the incompleted instrument have the effect of a deed poll binding the lessor. No estate had vested under it in the defendant, who is not shown to have occupied under a lease defectively executed as in Codman v. Hall, 9 Allen, 335, and Carroll v. St. John’s Society, 125 Mass. 565, 566.
It follows that the jury should have been thus instructed; and by the terms of the report judgment must be entered for the plaintiff.
So ordered.