Philp v. Dana

Ethridge, J., delivered the opinion of the court. The appellant filed a bill in the chancery court to enforce specific performance of a contract for the sale of land. The alleged contract was based on correspondence. Mr. Donaldson wrote appellee as follows: “I understand that you probably own one hundred and sixty acres of land in section 7, township 27, range 1 west in Quitman county, Miss., which you would probably sell. If this is so, I would be glad to have you price the same to me, giving me your best cash price, also your best price on terms, and what kind of terms you would be willing to make in the events of the sale. “I have a client who is interested in this piece of land and he understands that you are the owner. (Signed) W. M. Donaldson.’1’ • — 709 — To this letter the appellee replied as follows: “Your letter in regard to the one hundred and sixty acres of land which I own in Quitman Co. is received. “My price is thirty five dollars an acre. The payments two thousand dollars down, the remainder in three yearly payments to draw six per cent interest, (signed) Mrs. Charles S. Dana.” On August sixth Donaldson wrote the following letter: Your letter of the forth received, and noted. I had already taken up the matter of the sale of the land with the man I had in mind and told him what it could be had for, and he agreed to take it at thirty-five dollars per acre, the price named in your first letter. Therefore I could not raise the price on him in order to make a commision. I thought as you were getting more than a hundred per cent, profit, you might be willing to allow the usual commission for making sales, and have practically closed the deal, and I will therefore let it go through, even if I do not get anything out of it. “Of course, I can only blame myself for not getting anything for my effort in selling the place, but it will' teach me to be a little more careful the next time. “I have prepared the deed, deed of trust and notes in accordance with your first letter, dating them all as of August 1, 1919, which I herewith submit to you for your signature and approval. If satisfactory, sign and acknowledge the deed, and return to me or one of the banks here with instructions to deliver when the notes are sign.ed and turned over. “Sorry I have lost my time and postage, but suppose it cannot now be helped. (Signed) W.M. Donaldson.” It will be noted from this last letter that the appellee wrote a letter on the 4th of August, the contents of which do not appear in the record. The bill for specific performance alleged with reference to the ownership of land involved in the suit as follows: “Your complainant — 710 — would further show to the court on July 16, 1919, and prior thereto the defendant was the owner in fee simple of the lands in Quitman county, Miss., known and described as the Northeast quarter of section 7, township 27, range 1 West and is still the record owner of said lands at the filing of this bill.” The bill sets out by averment that the letters above set out passed between the said Donaldson (who is alleged to have been attorney and acting for the appellant) and the appellee demurred to the bill on several grounds, and the demurrer was sustained and the bill dismissed, from which decree this appeal is prosecuted. The bill does not allege that the appellee was not the owner of other lands in the said county or the said section, township, and range. It will be noted from the correspondence that no particular one hundred and sixty acres of land was described therein. The appellant sent unsigned notes and an unsigned deed of trust and an unsigned deed, with the request that the appellee sign the deed and return it to Donaldson or to a bank, to be delivered on the signing of the notes and deed of trust. • The bill did not have attached, nor was there tendered with the bill, any money or any signed notes and deed of trust, but the bill merely offered to pay the money and sign them after decree for specific performance. We do not think that the bill presents a proper case for a specific performance. There is no description of the property to be conveyed in the correspondence. The description contained in the correspondence could be applied to any land in said sections, township and range, and so far as the letters of the appellee are concerned it merely refers to one hundred and sixty acres of land in Quitman county. In Welch v. Williams, 85 Miss. 391, 37, So. 561, our court said: The elementary general rule, as frequently enunciated in reference to the enforcement of specific performance of contracts, so far as relates to the particular branch — 711 — of the subject here presented for consideration, is that the contract must be specific and distinct in its terms, plainly show with certainty that the minds of the parties liad met and mutually agreed as to all its details upon the offer made on the one hand, and accepted upon the other. If any of these requisites be lacking, specific performance will not be decreed by court of equity.” This court has held in several cases that to enforce specific performance there must be certainty in the description of the thing to be performed before the court will decree specific performance. Everman v. Herndon, 71 Miss. 823, 15 So. 135; Montgomery v. Norms, 1 How. (Miss.) 499; Beaver v. Crump, 76 Miss. 34, 23 So. 432; Romer v. Cannady, 79 Miss. 222, 30 So. 638, 55 L. R. A. 328, 89 Am. St. Rep. 593. The correspondence relied on does not disclose, until the notes and deed of trust were sent to appellee, who the purchaser ivas, nor does the bill disclose the financial condition of the appellant. It does not appear what kind of notes were intended to be executed for the deferred payments; whether such notes were to be bankable notes nor whether payable to order or to bearer, or whether the note was to carry a vendor’s lien or not. It is manifest that the details of the transaction would have to be settled by further agreement. Again the acceptance was not accompanied with the cash payment nor with executed papers sufficiently explicit to have closed the transaction by their acceptance by the appellee, before a specific performance will be decreed the tender of performance on the part of the appellant; that is to say, the payment of the money and the delivery of the notes, must be made to the other party at her place of buisness or residence, and this was never done. Robinson v. Weller, 81 Ga. 704, 8 S. E. 447. In that case Mrs. Weller advertised property for sale as follows: “For sale my place in East Eome, corner Howard avenue and E. T. E. E. adjoining Mr. H. B. Parks, for price — 712 — address me at 531 Montgomery avenue, Chattanooga, Tennessee.” To this notice Robinson addressed a communication to Mrs. Weller as follows:“ You will please quote me your lowest cash figure, one-third cash, balance in twelve and eighteen month’s time on lot adjoining park East Rome, and advertised in the Morning Courier. An early reply will oblige. Thos. L. Robinson.” To this letter Mrs. Weller replies as follows: “Received your card with four others asking the same question. In reply I ask two thousand dollars for my place, one-third cash, balance in twelve and eighteen months with legal interest on it.” To this Robinson replied by telegram as follows: ‘ ‘ Offer accepted. Money ready.-Send deeds at once.” This telegram was followed by letter as follows: “Your letter received offering me your. house and lot in East Rome at two thousand dollars, one-third cash one-third twelve months and one-third in eighteen months with legal interest on deferred payments. I wired you this a. m.. ‘Money ready, offer accepted, send deeds at once. I am prepared to make the necessary papers and would be pleased to have deeds come toward promptly. This price seems a little full and perhaps you would prefer to discount it slightly and get a cash payment in full for the place. If so let me know and I think I can arrange it. ’ ’ Mrs. Weller wrote Robinson in reply: I am sorry to write you but just after writing you I received a better offer. I have not accepted any offer yet. I received three telegrams to-day.” With this evidence the testimony closed and the defendant demurred to the evidence and the court granted non-suit holding that the plaintiff could not recover because the correspondence did not amount to a complete contract between the parties. Upon appeal the Georgia supreme court said: — 713 — It is true that a contract can be made by correspondence through the mail as well as when the' parties are together, and the same rules will apply in either case. But in order to make any sort of contract, the offer of the seller must be accepted by the purchaser, unequivocally, unconditionally, and without variance of any sort there must he a mutual consent of the parties thereto and they must assent to the same thing in the same sense. An absolute acceptance of a proposal, coupled with a condition, will not be a complete contract because there does not exist the requisite mutual assent to the same thing in the same sense. Both parties must assent to the same thing to make a binding contract between them. Applying these principles to the facts of this case, we find: (1) An advertisement in the newspaper by Mrs. Weller of a certain house and lot for sale; (2) a postal card addressed to Mrs. Weller by the plaintiff inquiring as to her price and terms; (3) a letter from Mrs. Weller, the defendant, stating her price and terms; (4) a telegram from the plaintiff to the defendant, saying: Offer accepted, money ready; send deeds at once, — and a letter of the same date amplifying the telegram and stating the same thing in substance.” The court held that her offer meant that she would accept the cash at her place of residence in Chattanooga, and that she was not compelled to make the deeds and send them to Borne, Ga., nor go to Borne, Ga., for the cash payment, and held that the above did not constitute a binding contract. It will be noted that the letter sending the deeds and notes to appellee above quoted closed with the following: “If satisfactory, sign and acknowledge the deed and return to me or one of the banks here with instructions to deliver when the notes are signed and turned over.” This letter carries with it the recognition that the appellee is to approve the papers sent, and it is silent as to payment of money. We think the appellee was en — 714 — titled to the right to pass upon the solvency of the buyer and the character of security for the deferred payments which she would demand. She was not compelled to take a deed of trust hut could require a bankable note, and had a right to have these delivered to her at her place of residence, and if this was not done the complainant was not entitled to the relief prayed for. The court below having reached the same result, the judgment will he affirmed. Affirmed.