Esmay v. Gorton

Scates, C. J. The statute of frauds not being pleaded or set up in the answer, no question arises upon the admission of parol evidence, in establishing the contract. Kinsie v. Penrose, 2 Scam. R. 520; Dyer. v. Martin, et al., 4 ibid. 146; Tarleton v. Vietes, 1 Gilm. R. 470; Switzer et al. v. Skiles et al., 3 ibid. 529. The purchase and the terms of sale are very distinctly proven. The defendants, in all things, as far as they could, have complied with the terms, by paying the taxes to Osborn, and tendering to him, for plaintiff, the first payment, amounting to $1,250'; and this has been maintained by a deposit of the amount in court. 2 Bouvier L. Diet 5, 70 “Tender.” Taking the objections to this contract in detail, we find neither sufficient to prevent a specific enforcement of the agreement, as alleged. The contract need not be on one piece of paper, nor entered into at the same time by both parties. It will be sufficient to connect the several pieces of paper containing the whole of the contract, and which, when connected, show the parties, property, terms and consideration. McConnell v. Brillhart, 17 Ill. R. 354; 2 Parson Cont. 298; 15 Vermont R. 685 ; 3 Taunt. R. 169. While the contract must be mutual, the current of authorities seem to settle the construction of the statute of frauds as only requiring the signature of the party to be charged; and the party so charged on bill for specific performance may not allege the want of the signature of the other contracting party. 2 Parson on Cont. 290-1, and notes. But no question can arise in this case upon the want of writing or signature on the part of defendants, as plaintiff does not insist on the statute; for a parol contract for the sale of land was good at the common law, and, when accompanied by livery of seizin, was a good conveyance of estates lying in livery. The minds of the contracting parties must meet upon the terms. Where a jiroposition is made on one side, it must be simply and fully accepted by the other. Where it is submitted in, and sent by letter, it must be accepted as sent, within the time named, if any, and answered as required. If the terms, time or other part be changed or modified, the case becomes a new proposition, and, until simply accepted, there is no agreement or mutual meeting of minds. This is abundantly established by authorities. Carr v. Duval et al., 14 Pet. R. 77; 17 Ill. R. 354 ; 3 John. R. 534 ; 1 Paige R. 434; Eliason et al. v. Henshaw, 4 Wheat. R. 225 (4 Cond. E. 432); Chit, on Cont. 12; 2 Sim. and Stu. E. 194 (1 Eng. Oh. E. 195); 9 Barn, and Cress. E. 561 (17 Eng. C. L. E. 443) ; 4 Mees, and Welsby R. 155; 5 ibid. 535. In the strictest sense, we think defendants have established their alleged contract. They first submitted a proposition, through plaintiff’s agent, Osborn, which plaintiff modified, by requiring them to refund to Osborn the taxes advanced for plaintiff for the year past. This was simply accepted, and these taxes refunded within a reasonable time. In reference to the cash in hand, we think the tender fully met the obligation of the parties. The proposition was to deliver a deed at once, on the conclusion of the purchase, and take back a mortgage to secure the remainder of the purchase money. Although the papers were to be dated the 1st of May, the cash payment was due on the delivery and exchange of deed, mortgage and notes. It was plaintiff’s fault that this was not done by the 1st of May. The tender in advance of offer to deliver the deed, or refusal to proceed with the sale, was made within a reasonable time after the contract was concluded. Again, objections are made to the form of deed sent to be executed, and to making payments due at Bock Island bank, instead of Albany, plaintiff’s residence. A form was submitted, with the proposition, as a suggestion of what would be appropriate and sufficient, rather than as part of the terms. In simply accepting the terms, we do not understand this precise form of deed was agreed to. The plaintiff’s agent sent a form of deed and mortgage, payable at Bock Island, with the view of executing the details of the contract, and not as a new proposition or alteration of the old. So we understand the evidence. If plaintiff was not satisfied with the details proposed, he should have executed and sent a sufficient deed, such as he had suggested with his proposition, with instructions to deliver it when defendants would pay the cash, and deliver notes and mortgage, payable at Albany. This he has not done, but simply refused to proceed. We agree that, where no place of payment is agreed on, the debtor must seek the creditor at his domicil, or usual place of business, if he have either. See 5 Maine R. 192; Bixby Exrs. v. Whitney. Lastly, objection is made that Osborn was to accept, tor his commissions on his agency in the sale, the sum of fifty dollars, which he refuses to do. This proposition to the agent was part of the same letter, containing the proposition to defendants, but was no part of the proposition itself. These defendants had nothing to do with the settlement of the agent’s services. If plaintiff really intended to make that settlement a part of the proposition, he has failed to so word it. He may not now attach it by construction. Decree affirmed.