Davis v. Brigham

Mr. Justice Eakin delivered the opinion of the court. 1. The first question for consideration is: Was there a contract between defendant Brigham land plaintiff for the sale of the land? We think not. Defendant’s offer of August 25th to sell was not an offer to Mitchell as he was not seeking to purchase, but it authorized Mitchell to bring him a purchaser at the price named within 20 days. 2. Mitchell’s telegram of the 13th was not an acceptance either for himself or for Davis. It was not mutual. Sprague v. Schotte, 48 Or. 609 (87 Pac. 1046). Brigham could have had no remedy thereon. It was simply an effort of Mitchell to bring Brigham and Davis together, but at no time were they brought together upon terms of sale. Davis by his letter of the 10th of September sought to secure an option to purchase the land, but made no effort to accept the terms contained in Brigham’s letter of August 25th, and Brigham did not at any time recognize Davis as the party with whom he was dealing. 3. Neither can Mitchell be deemed to have accepted the offer for Davis, as his authority to do so must have been in writing as provided by Section 797, B. & C. Comp., but even oral authority to act for him is not shown. [47] 4. Although by the statute of frauds the memorandum of the agreement need only be signed by the party charged (which refers not to the party charged with the contract, but the party charged in the action; that is, the defendant), yet there must be a contract. To make it obligatory, it is necessary that the other party shall have accepted or assented to the terms of the .agreement the writing contains. Case T. M. Co. v. Smith, 16 Or. 381 (18 Pac. 641). See note to Ullsperger v. Meyer, 217 Ill. 262 (75 N. E. 482: 2 L. R. A. [N. S.] 221: in 3 Am. & Eng. Ann. Cas. 1036). 5. In this case if there was a contract it was in writing signed by both parties, but it does not amount to a contract. There was no acceptance upon which Brigham had any remedy. To entitle the vendee of real estate to maintain a suit for specific performance based upon an offer by defendant to sell, there must have been a clear and explicit acceptance of the offer within the specified time. Phelps v. Good, 15 Idaho, 76 (96 Pac. 216); Robinson v. Weller, 81 Ga. 704 (8 S. E. 447). And the acceptance must be of the terms of the offer. 6. The telegram by Mitchell to defendant to “send deed in name of Davis, to Seattle, Washington, per your letter August 25th,” is not a compliance with defendant’s offer to “let it go for that price provided it is taken within 20 days.” The telegram is not even an agreement that Mitchell or Davis will take the property, nor is an agreement to take it sufficient. The money must have been paid to defendant within the 20 days at Buckley, Michigan. In Foss v. Ater, 49 Wash. 446 (95 Pac. 1017), it is held that “offer accepted” without a tender of the money would not convert the offer into a binding contract of sale. Sawyer v. Brossart, 67 Iowa, 678 (25 N. W. 876: 56 Am. Rep. 371); Kelsey v. Crowther, 162 U. S. 404 (16 Sup. Ct. 808: 40 L. Ed. 1017); Sands v. Crosby, 74 Mich. 313 (41 N. W. 899); Robinson v. Weller, 81 Ga. 704 (8 S. E. 447). [48] But the telegram does not purport to be an acceptance by any one. Nothing that took place after September 13th in any way related to the offer of Brigham of August 25th, and, when Brigham sent the deed and draft to Dexter Horton & Co., he was not under contract with any one to do so, and it was subject to his recall ¡att any time. 7. The deposit of the deed with Dexter Horton & Co. was not an escrow in the sense that plaintiff had any interest therein. It was not a deposit upon a contract with him that it should be deposited nor had he a right to demand that it remain in escrow for his benefit or for any period of time. There was no contract or agreement between them at any time. An escrow is defined in 16 Cyc. 562: “In the great majority of cases, the instrument deposited, together with the stipulation as to the condition or the event upon performance or happening of which the instrument is to take effect, constitutes a Contract. Indeed, by the general rule, there must be a valid existing agreement between the parties, containing all the elements of a contract.” “As a general rule, the condition must be part of a contract between the parties.” Page 564. 11 Am. & Eng. Enc. Law (2 ed.) page 335, contains a clear and comprehensive statement of the character of contract that is essential to constitute an escrow: . “In order that an instrument may operate as an escrow, not only must there be sufficient parties, a proper subject-matter, and a consideration, but the parties must have actually contracted. When the instrument purports to be a conveyance of land, for instance, the grantor must have sold, and the grantee must hlave purchased, the land. A proposal to sell or a proposal to buy, though stated in writing, will not be sufficient. The minds of the parties must have met, the terms must have been agreed upon, and both must have assented to the instrument as a conveyance of the land, which the grantor would then have delivered and the grantee received, except for the agreement then made [49] that it be delivered to a third person, to be kept until some specified condition be performed, and thereupon be delivered to the grantee by such third person.” Miller v. Sears, 91 Cal. 282 (27 Pac. 589: 25 Am. St. Rep. 176); Fitch v. Bunch, 30 Cal. 208; Stanton v. Miller, 58 N. Y. 192; Campbell v. Thomas, 42 Wis. 437 (24 Am. Rep. 427); Patterson v. Underwood, 29 Ind. 607; Wier v. Batdorf, 24 Neb. 83 (38 N. W. 22.) Therefore the remittance of the deed in favor of Davis and the draft upon him to Dexter Horton & Co. at Seattle, on September 19th, was not ah escrow and was subject to his recall at any time before it was delivered, and it was recalled on October 8th. The decree of the lower court is affirmed. Affirmed.