Russell v. Ives

Vinje, J. The memorandum of sale was signed by the party by whom the sale was to be made. That is sufficient under our statute. Sec. 2304, Stats. 1917, provides that “Every contract for the leasing for a longer period than one year or for the sale of any lands or any interest in lands shall be void unless the contract or some note or memorandum thereof, expressing the consideration, be in writing and be subscribed by the party by whom the. lease or sale is to be made or by his lawfully authorized agent.” It described the property, stated the purchase price, and the terms of payment, namely, cash. So it complied with the statute in every respect. - But it is contended by defendant, first, that there is no evidence to sustain the finding that plaintiff orally accepted the offer, and second, that an oral acceptance of a written offer to sell lands is void; that the acceptance must be in writing álsó. As to the first claim the record shows evidence sustaining the finding. Plaintiff testifies that before the 18th of September he told defendant that he would take the lots; that he was there to do so, and the defendant said, “All right.” The memorandum was signed Saturday and this» conversation took place the following Tuesday morning after they had measured the property. As to the second contention, the authorities are almost unanimous in holding that an oral acceptance of a written option to sell land is valid. See 25 Ruling Case Law, 674, and long list of cases there cited. The case of Wardell v. Williams, 62 Mich. 50, 28 N. W. 796, is cited to us as holding a contrary doctrine. An examination of the case will show that the court in that case held the written memorandum incomplete, and that the precise question here presented was reserved. The court said: “It is not necessary for us to decide in this case whether a verbal acceptance would be binding when there was nothing to be done'by the purchaser except the payment of the purchase money, for' the reason that in this case something more was required.” Page 62. [126] See, also, Cheney v. Cook, 7 Wis. 413, and Lowber v. Commit, 36 Wis. 176. Since the defendant had no authority from his wife to sell the lots he bound himself by the contract he made. Wis. Farm Co. v. Watson, 160 Wis. 638, 152 N. W. 449. ' No tender of money before September 18th was necessary, for the memorandum specified-that abstracts should be furnished and a merchantable title was impliedly to be tendered before the purchase money could be demanded. After plaintiff was notified on the 18th that defendant would not perform, he was under no obligation to make a , tender. Potter v. Taggart, 54 Wis. 395, 11 N. W. 678; Kreutzer v. Lynch, 122 Wis. 474, 100 N. W. 887; Inglis v. Fohey, 136 Wis. 28, 116 N. W. 857. By the Court. — Judgment affirmed.