Cram v. Long

BARNES, J. Tbe appellant concedes that the authority conferred on Kendall to collect rents and look after the property generally did not confer any power to make a sale of it, and that such power, if it existed, was conferred by the letter of October 10, 1905, and letters written thereafter. The appellant further concedes that no authority was conferred on' Kendall to dispose of the interest of Mrs. Long's daughter, and that therefore specific performance cannot be enforced at least against her. However, the contention is made that Mrs. Long authorized.Kendall to make the contract of sale which he did make, and that whether this be true or not she subsequently ratified the contract; that the action for specific performance was brought in good faith, and that all the facts in reference to the transaction are before the court; and that, the specific relief prayed for being impracticable, the court should award a judgment for money damages to the' plaintiff and against Mrs. Long. There is practically no dispute in the evidence, and the first important inquiry is: Was the trial court warranted in drawing the inferences which it did from the testimony? An affirmative answer to this question disposes of the case. Mrs. Long’s letter of October 10th was written in reply to a letter which she received from Mr. Kendall. His letter [20] might serve to elucidate the meaning of hers, but it is not in evidence. Her letter of January 20th to Oram may refer to this letter of Kendall’s or it may refer to one subsequently written. In it she says: “Last letter he [Kendall] said that a party wanted to know what I would take for the place.” The letter of October 10th contains this bare statement: “As to selling the place, I would let it go for $3,500.” Obviously this letter conferred no authority on the agent to enter into a written contract for the sale of the property, much less the elaborate contract that was made in this case. Bosseau v. O’Brien, 4 Biss. 395; Gilbert v. Baxter, 71 Iowa, 327, 32 N. W. 364; Prentiss v. Nelson, 69 Minn. 496, 72 N. W. 831; Grant v. Ede, 85 Cal. 418, 24 Pac. 890; Furst v. Tweed, 93 Iowa, 300, 61 N. W. 857. Neither do we think that the letter authorized Mr. Kendall to act as Mrs. Long's agent to secure a purchaser for the property and to charge her a commission for so doing. Apparently the suggestion about selling came from him and she made an offer to sell the property for a specific sum. If there was an unqualified acceptance of the offer in writing and the proper tender was made and Mrs. Long owned the premises, the offer and acceptance might well make a binding contract which would support an action for specific performance. But Mrs. Long would 'not be liable for any commission on the sale so made. The written contract entered into by Gram and Kendall on December 26, 1905, was not an unqualified acceptance of Mrs. Long’s offer. It recited that $50 on the purchase price was paid to Kendall and that the remaining $3,450 was to be paid to Mm when a warranty deed and an abstract showing “a perfect title of record” was delivered to the purchaser. Whether a demand for such an abstract could be coupled with an acceptance of her offer to sell may be doubted. It would be incumbent on Mrs. Long to convey good title. She might have a perfect title by adverse possession although she had [21] no title of record whatever. It cannot be doubted that a payment of a part of the purchase price to Kendall and an agreement to pay him the balance of it was not an acceptance of the offer made. It was the defendant’s legal right to have the money paid to herself and at her place of abode. Northwestern I. Co. v. Meade, 21 Wis. 474. So we think the trial judge was correct in holding that Kendall was not authorized to enter into the land contract. This leaves for consideration the question of ratification and also the question of a subsequent offer and an acceptance thereof. We do not think there is any evidence to show a ratification of the contract made by Kendall. Mrs. Long’s letter of December 31st was written before she knew the contract of sale was made. It was hardly an unqualified offer to sell. It said: “We have been trying to come to some decision about selling the place. . . . My daughter thinks we ought to get $3,500, but I think we might take say $3,400. If he would pay you the commissions and leave me the rent until May.” The last two sentences quoted were evidently intended for one. If the letter is an offer to sell, it is an offer to sell for $3,400, the purchaser to pay commissions and to allow Mrs. Long the rents to May 1st. It is a different proposition from that first made and one which Mrs. Long had the right to make if there had been no legal acceptance of the first offer. The letter of January 14th was written after Mrs. Long had been advised of the making of the contract. She explains her letter of October 10th by saying that when she said she would take $3,500 she meant this sum above all expenses. She then says if they will “send” a check for this amount and give her the rent to May 1st, she will convey. This was clearly a modification of the offer of October 10th, but one made at a time when she had the right to change her offer. It was not a ratification of the contract made by Kendall, be [22] cause it required tbe payment of au additional consideration by way of rent, if for no other reason. In none of her letters did Mrs. Long agree to abide by the terms of the contract made by Kendall. She very adroitly avoided doing so. The plaintiff might have made a binding contract with Mrs. Long by making an unqualified acceptance of the conditions named in her letter of January 14th and by promptly performing his part of the agreement. He did neither. Under date of January 17th the agent refused in effect to comply with these terms. Gram in his letter of January 16th stood squarely on his written contract and stood on it as written. On January 24th Mrs. Long made still another offer to convey, the conditions being substantially the same as those contained in her letter of January 14th. The plaintiff did not accept this offer, although he came nearer to it than he did to any of her former offers. The trouble was that, instead of unqualifiedly accepting the offer made, he in effect made a counter proposition by changing one of the conditions of the offer of sale. She had not agreed to furnish an abstract. She had insisted that the money be sent her at Glens Falls and that she would then make a deed. Instead of consenting to tender the money and receive the deed there, the purchaser insisted that the deed and abstract be sent to Beloit for delivery on payment of the purchase price. This court has repeatedly held that the purchaser has not the right to change the place of payment where he attempts to accept an offer, and that an acceptance of this kind is not an unqualified one such as is necessary to make a binding contract to sell real estate by letter. Northwestern I. Co. v. Meade, 21 Wis. 474; Baker v. Holt, 56 Wis. 100, 14 N. W. 8; and Curtis L. & L. Co. v. Interior L. Co. 137 Wis. 341, 345, 118 N. W. 853. Kendall’s letter of January 29th likewise falls short of being an unqualified acceptance. Mrs. Long’s proposition was to make a deed after the money to pay for it was deposited. [23] Kendall’s offer was to pay tbe money after tbe deed was executed and it was deposited together with an abstract of title. Tbe difference was bardly worth disagreeing about, but Mrs. Long evidently did not want to go to tbe expense and trouble of mating out a deed and procuring an abstract until she knew that tbe money was within her .reach, and she bad tbe right to make this condition if she saw fit. There was no further correspondence which is material. A tender was subsequently made on May 29 th. It was made to the agent, Kendall, on the theory that the written contract of sale was binding on Mrs. Long, and it was made after she had advised the parties that she would not sell. She had the right to withdraw the offer before there was an acceptance of it. Hopkins v. Racine M. & W. I. Co. 137 Wis. 583, 119 N. W. 301; Johnson v. Filkington, 39 Wis. 62. By the Court. — Judgment affirmed.