J. L. Gates Land Co. v. Ostrander

SiebecKee, J. Tbe object of tbe action is to enforce specific execution of an alleged parol contract for tbe sale of lands. It is averred tbat tbe defendant is precluded from insisting upon tbe statute providing tbat “every contract . . . for tbe sale of any lands or any interest in lands shall be void unless tbe contract or some note or memorandum thereof, expressing tbe consideration, be in writing and be subscribed by tbe party by whom . . . tbe sale is to be made or by bis lawfully authorized agent” (sec. 2304, Stats. 1898), for tbe reason tbat tbe plaintiff has in part performed tbe agreement. Tbe material facts relied on are tbat plaintiff bad an option to purchase tbe lands from tbe French Lumbering Company, tbe owner of them at tbe time tbe alleged agreement was made; tbat one E. D. Van Etten, as agent of tbe defendants,made a parol contract with plaintiff whereby it was agreed that defendants should purchase these lands from tbe French Lumbering Company upon tbe terms and conditions of an offer tbe lumbering company bad made to Van Etten as agent of defendants; tbat, as soon as defendants bad removed the merchantable timber therefrom, tbe lands should be conveyed to plaintiff at tbe price specified in plaintiff’s written offer for the purchase of these lands from defendants. It is further alleged tbat this agreement, with tbe offer of purchase, was to be submitted to tbe defendant Ostrander per [292] sonally for accejDtance; tbat be never accepted it in writing, bnt tbat be retains tbis written offer; tbat plaintiff, acting upon tbe agreement made with tbe agent Van Etten, relinquished its rights under tbe option then held by, it for tbe purchase of tbe lands. Tbe fact also appears tbat James L. Oates, acting as plaintiff’s authorized officer,- bad full knowledge tbat Van Ellen bad no authority to purchase lands for defendants as contemplated by tbis agreement. In actions for tbe specific performance of parol contracts for tbe sale of lands, tbe primary and fundamental requisites are tbat a contract be established possessing all tbe elements and features necessary to a specific enforcement, and tbat the-contract sought to be enforced upon part performance be fully made and completed in all its terms except tbe written memorandum required by tbe statute. 1 Story, Eq. Jur. § 767; Pomeroy, Spec. Perf. secs. 110, 145; Pomeroy, Eq. Jur. § 1409, and note. It is contended tbat tbe facts alleged show tbat a completed contract was entered into between plaintiff and defendants, whereby defendants agreed to convey tbe lands to plaintiff xxpon tbe terms specified. Tbe facts alleged are tbat tbe agent of defendants entered into tbis contract for tbe sale of lands subject to bis principals’ approval, and tbat such agent delivered plaintiff’s written offer for tbe purchase of these lands to defendants, but who- neither personally nor through such agent assented to such proposed agreement. It is true defendants did not return tbe written memorandum of plaintiff’s offer to purchase; but there was no express agreement tbat such retention of tbe memorandum should be an acceptance of tbe proposed contract, nor does it follow tbat such is tbe effect by necessary implication. As a matter of fact tbe parties made no agreement. Tbe transactions between tbe plaintiff’s president and defendants’ agent, in legal effect, were no more than tbe preliminary negotiations for an agree293 rnent, which, failed of consummation by the refusal of defendants to accept it. If plaintiff, relying on the assurances of defendants’ agent, acted on such preliminary agreement, it is no ground for invoking this form of equitable relief, which is only granted when it clearly appears that a contract has been, in all its elements, fully completed between the parties, except reducing it to writing. The facts alleged fail to establish that a contract for the purchase of these lands by plaintiff was ever accepted or agreed to by defendants, personally or by any authorized agent for them. Under this state of the case plaintiff is not legally aided by the fact that the lands were subsequently purchased by defendants. Plaintiff relinquished its rights under the option for the purchase of these lands upon the proposed agreement as made between it and defendants’ agent; its representative being at the time fully informed that the agent had no authority to buy lands for the defendants, and that the contract had not been approved or sanctioned by them. The relinquishment of plaintiff’s option from the French Lumbering ■Company, under these circumstances, is not an act of part performance under and in pursuance of an agreement between plaintiff and defendants. It was in fact a prior act done in anticipation of the acceptance of the contract by defendants. Plaintiff’s representative was bound to know whether a valid and completed agreement had been actually made between himself and defendants, except reducing it to writing, when the alleged act of part performance took place. The rule is that the acts of alleged performance must be obviously and solely done in reliance on, and under the obligations of, an established parol contract. Park v. M., St. P. & S. S. M. R. Co. 114 Wis. 347, 89 N. W. 532; 1 Story, Eq. Jur. § 762; Pomeroy, Spec. Perf. see. 108; Lydick v. Holland., 83 Mo. 703. Another fundamental requisite is that the part perform294 anee relied on for specific execution of tbe contract “must be-clearly and exclusively referable to, and in performance of, its terms.” If tbe alleged acts of performance are reasonably explicable upon some other grounds, then they are not sufficient to take tbe case out of tbe statute. Plaintiff insists that its relinquishment of its interest in these lands under tbe option was done solely with a view to tbe performance of this agreement. It is alleged,' however, that tbe option contract obtained from the French Lumbering Company entitled plaintiff to purchase said property at an agreed price for a stated period of time, that tbe lumber company would not sell tbe timber separate from tbe lands, and that plaintiff was willing and ready to purchase tbe stump lands covered by tbe option. It is not alleged that plaintiff bad decided to buy tbe lands with tbe timber thereon, under tbe option, but it is stated that it did not want tbe lands with tbe timber; clearly tending to negative a purpose to make such a purchase as tbe option contract provided. From these facts tbe inference is legitimate that it may have relinquished tbe option because it did not intend to .purchase these lands upon tbe conditions of tbe option. Under such circumstances the relinquishment of tbe option cannot be held as clearly and exclusively referable to, and as done in pursuance of, tbe alleged contract for tbe sale of tbe lands between it and the defendants. As stated by Chancellor Kent in Phillips v. Thompson, 1 Johns. Ch. 131: “It is well settled that, if a party sets up part performance to take a parol agreement out of tbe statute, be must show acts unequivocally referring to, and resulting from, that agreement — such as tbe party would not have done unless on account of that very agreement, and with a direct view to its performance. . . . There must be no equivocation or uncertainty in tbe case.” Plaintiff has failed to establish satisfactorily and clearly that an agreement for tbe sale of lands was made as claimed, and that tbe acts alleged as part performance are exclusively • [295] referable to, and. done in performance of, tbe alleged contract. Tbe conrt ruled correctly in bolding that tbe complaint does not state a good cause for tbe specific enforcement of an alleged contract for-tbe sale of lands. By the Court. — Judgment affirmed.