Hamilton v. Patrick

Landon, J. We think this judgment must be reversed, because no contract was ever completely made between the plaintiff and the defendant Patrick for the purchase.and sale of the premises. On the 14th of January, 1885, the plaintiff sent by one Truesdell to the defendant Patrick a writing signed by herself, as follows: “I, Edwin L. Patrick, hereby agree to sell, and Jennie K. Hamilton agrees to buy, for two hundred dollars, the following described premises, located in the town of Caldwell, county of Warren, and state of New York, viz.: [Here follows a description.] A deed of said premises, with the usual full covenants of warranty, etc., in which deed the wife of said Edwin L. Patrick shall join, is to be executed and delivered to said Jennie K. Hamilton on or before March first, 1885, at which date said money shall be paid. This contract is to bind the heirs, executors, and administrators of each party. “Dated January 14,1885. Jennie IC. Hamilton.” The defendant Patrick received the writing, and added thereto at the bottom thereof the following, and signed the same, and delivered it to Truesdell for the plaintiff: “I sign this contract with the consideration that you agree to build all of the line fence on said south line, running from said road described above' to the shore of Lake George, so that I have no expense. “E. L. Patrick. [579] This additional paper was never signed by the plaintiff. Truesdell sent the paper to the plaintiff.' The plaintiff resided in New York; the defendant Patrick, at Lake George. The land in question is situate upon the west shore of Lake George. Truesdell had acted for the plaintiff in the negotiations with Patrick, but did not assume to give her assent to the modification added by Patrick. The plaintiff did not communicate to Patrick her acceptance of the terms added by him until after May 1st following. On February 2,1885, plaintiff’s husband wrote a letter to Brown, a surveyor at Lake George, extracts from which are hereafter set forth, inclosing a copy of the alleged contract, requesting him to survey the land, draw a deed of it to plaintiff, and have Patrick and his wife execute it, and, if Patrick consented, hold the deed in escrow until he should forward a check. Brown read the letter to Patrick, who told him to make the survey, and also that he would not sell the land unless the plaintiff would make the line fence. Brown made the survey February 7th, drew the deed, omitting reference to the line fence, and handed the deed to Patrick. February 18th, Patrick asked Brown if he had received the check, and Brown replied he had not. February 24th, Patrick and wife executed and acknowledged the deed, and Patrick notified both Brown and Truesdell before March 1st that it was ready for delivery. He retained it, and never tendered it to plaintiff or asked performance. The plaintiff did not demand the deed or tender performance until July following. 'The parties did not further communicate with each other respecting the matter until after the plaintiff learned that Patrick had sold the premises to the defendant Mrs. Tremain. Negotiations between Patrick and Mrs. Tremain commenced about March 13, and Patrick delivered the deed to her April 30, 1885. Three days prior to that date the plaintiff, then being at Lake George-, at the house of Truesdell, and near to Patrick’s house, heard that Patrick had sold the premises to Mrs. Tremain. On May 6, 1885, the plaintiff asked Patrick for the deed of the premises, and in July following tendered him $200, with interest thereon from March 1, 1885, and demanded the deed, and Patrick refused. It was not necessary that the plaintiff should sign the contract as modified by the addition made to it by Patrick. Justice v. Lang, 42 N. Y. 493; McCrea v. Purmort, 16 Wend. 465. But it was necessary that the plaintiff should in some way assent to it in its modified form; otherwise there would be no meeting of the minds of the parties; and it was necessary that she should communicate that assent or acceptance to Patrick within a reasonable time, or place the notice of assent or acceptance in the proper way of reaching him within a reasonable time. White v. Corlies, 46 N. Y. 467. The court said in the case cited: “ Where the offer is made by one party to another when they are not together, the acceptance of it by that other must be manifested by some appropriate act. * * * A mental determination, not indicated by speech, or put in course of indication by act to the other party, is not an acceptance which will bind the other. ” An acceptance not thus communicated to the proposer or his agent does nob make a contract. Railroad Co. v. Dane, 43 N. Y. 240; Pol. Cont. 26; Mclver v. Richardson, 1 Maule & S. 557; Mozley v. Tinkler, 1 Cromp. M. & R. 692; Russell v. Thornton, 4 Hurl. & N. 788. Where the parties are together, and the proposal as written and signed is delivered and received as a completed contract, the assent thereto of the non-signing party may be inferred from the transaction. Here the plaintiff was in New York, and the defendant Patrick at Lake George, and until the plaintiff should communicate or transmit her acceptance to Patrick there would be no actual meeting of the minds of the parties. The appeal-book recites: “The contract [that is, the writing] was put in evidence, its execution being admitted, marked, ‘ Plff. 24.’” This was an admission of the execution of the paper, but no admission of anything else,—certainly not that [580] its effect was increased or augmented beyond its terms. Practically the same admission was made in the answer of the defendant Patrick, and the same effect should be given to it. The defendant Patrick expressly took the ■ point on the trial that no mutual contract had been made between him and the plaintiff. The letter written by plaintiff’s husband to Brown, the surveyor, and Brown’s communication of its contents to Patrick, was not the act of the plaintiff. But, if it had been, it fell short of an acceptance; it was rather an act showing that acceptance was held in abeyance. The letter stated: “We desire to have included in the piece of land as much of the shore as can fairly and properly be done under the contract, and as many of the trees as can fairly be included within the lines. If there is any vagueness or error in the description, I hope you will confer with Dr. Patrick, and have it made right. I drew the description in the contract ‘A ’ without being on the spot, and for that reason it may need correcting. ” Nothing was said in the letter about the line fence, but Patrick at the time told Brown that tie would not sell the land unless plaintiff would build the line fence. Thus the-plaintiff’s husband clearly intimated his fear that the “contract” was inadequate to secure to him all the land he wanted, and Patrick was still uncertain as to whether his proposition about the line fence was acceptable, or would be accepted. One party kept aloof from closing the contract until the survey should prove satisfactory, and the other kept aloof until the line fence should be brought within the agreement. They never by mutual acts came any nearer together. A proposal may by its terms limit the time for acceptance. Especially is this so in the sale of an option, or where the contract embraces one. In such cases the right of acceptance is a contract right, and the proposal cannot be revoked otherwise than within the terms of the contract. When no limitation is expressed in terms in cases where the right of acceptance is a contract right, the rule is that the acceptance must'be made within a reasonable time, and w'hat is a reasonable time depends upon the circumstances. Fitzpatrick, v. Woodruff, 96 N. Y. 561; Wooster v. Sage, 67 N. Y. 68. When Patrick, made the addition to the plaintiff’s proposal, the whole paper became Patrick’s proposal. It was not founded upon any consideration. Patrick proposed in anticipation of receiving an acceptance, not in consideration of any present1 promise or benefit. His proposal, therefore, vested no contract right in the plaintiff. The only right she had was to accept the proposal while it was open. As it was a purely voluntary proposal, Patrick could withdraw it at his pleasure. It is plain that he kept it open until the 1st day of March had passed. It' is not clear tiiat he kept it open any longer. The proposal itself implies the necessity of acceptance on or before that day. It is therein proposed that the deed should be executed and delivered to the plaintiff “on or before March 1, 1885, at which date said money shall be paid.” Acceptance must precede any obligation to perform, and of necessity must be made so as to admit of performance as proposed. Any subsequent acceptance would imply a contract different from the terms proposed. " Such a change cannot be unilateral, but must be mutual. Patrick could not be forced by the plaintiff to make any change, however slight. Parties may be as unreasonable as they please about entering into a contract. The equitable rules which the .courts sometimes resort to in construing a contract after it is made cannot be resorted to to compel a party to adhere to his voluntary proposal to make one. A proposal may be revoked at any time before acceptance. Quick v. Wheeler, 78 N. Y. 300. It is plain that an offer to sell, made without consideration, is a nudum pactum, and therefore the proposer may change his mind; if the■otlier party accepts after such change, their two minds do not meet,- and hence mo contract is made. It will not, however, be presumed that he has changed Ms mind within the time obviously allowed for acceptance, unless he does some act indicating such change. Suppose that, notwithstanding March 1st [581] had passed, Patrick still kept the proposal open for a time. On the 30th of April he conveyed the land to the defendant Mrs. Tremain. He thereby indicated in the most decisive manner that he had finally changed his mind. The plaintiff had meantime done nothing to raise any equities in her favor. She learned the fact of this conveyance, and afterwards gave Patrick notice of her acceptance. She then knew that the proposal to her was withdrawn; that their minds could not meet; that no contract could be made. In Dickinson v. Dodds, 2 Ch. Div. 463, 16 Moak, Eng. R. 864, it was held that an offer to sell property may be withdrawn before acceptance without any formal notice to the person to whom the offer is made; that it is sufficient if that person has actual knowledge that the person who made the offer has done some act inconsistent with its continuance, such as selling the property to a third person. The court adopts the line of reasoning which we have set forth. It seems to be conclusive. The learned trial judge was of opinion that the tender of performance by the plaintiff in July, and the subsequent commencement of this action, constituted such an adoption by the plaintiff of the proposal as rendered the remedies between the parties mutual. This would no doubt be true as between Patrick and the plaintiff, if Patrick had elected so to treat it. But he did not so elect. Such an acceptance was too late to bind him against his will; and even if he had elected to be bound, it was too late for him to change his position with respect to his grantee, the defendant Mrs. Tremain, so as to impair the title he rightfully conveyed toiler. The defendant Mrs. Tremain urges further grounds for reversal, based in part upon facts touching the good faith of her purchase from Patrick. As the judgment must be reversed for the reasons, above considered, we do not deem it needful to set forth such facts or prolong this discussion. Judgment reversed, new trial granted, costs of this appeal to abide event.