Hess v. Holt Lumber Co.

Rosen'berry, J. The defendant claims that the court erred for the reason that the letter of September 17th did not amount to an acceptance, as . there was a material variation from the terms of the offer. Considerable evidence was offered and received as to the conduct of the parties subsequent to the receipt of the letter by defendant. We regard all of this evidence as immaterial, for the reason that before the letter of acceptance was received by the defendant it had withdrawn its offer. If there was a valid, enforceable contract, it must have been made by the acceptance mailed by the plaintiff on September 17th, and if the letter did not make a valid contract, the offer having been withdrawn, none could thereafter be made. It is not disputed that the parties had made the post a means of communicating offer and acceptance. The offer having been made by post, the acceptance might be made by post. The contract, if one was made, was complete from the moment the letter was mailed [454] by the plaintiff to the defendant. 1 Page, Contracts (2d ed.) § 199; 13 Corp. Jur. p. 300, § 116. The offer was to sell the timber upon the land in question for $150. The time, place, and medium of payment were not specified, nor was the time within which the timber was to be removed fixed by the offer. If the offer had been accepted without qualification, payment should have been made to the vendor at its place of business in cash, and the plaintiff would have had a reasonable time within which to remove the timber. The words of acceptance were, “Find inclosed check for $150 for the timber” on the lands described and a demand for one year’s time within which to remove the timber and a direc-tio’n to have the deed made to L. C. Hess. The direction as to the making of the deed to L. C. Hess may be considered as having been assented to by the defendant, it having been suggested in a prior letter, and no objection having been made thereto. No evidence was introduced or received as to the length of time within which the plaintiff might have removed the timber in the ordinary course of business. In the absence of such evidence, we are of the opinion that the demand of the plaintiff that he be given one year within which to remove the timber was such a material variation from the terms of the offer as to make it a qualified acceptance requiring something to be done on the part of the defendant; that therefore no completed contract was made by the mailing of the letter. In Cram v. Long, 154 Wis. 13, 142 N. W. 267, it was held that a contract made by an agent by the terms of which the purchase price was to be paid to the agent instead of to the principal variéd the terifis of the offer and amounted to a qualified acceptance. In Northwestern Iron Co. v. Meade, 21 Wis. 474, M. offered by letter to sell W. forty acres of land for $10 per acre, subject to two years’ taxes. W. replied, agreeing to pay “what you ask — $400 and two years’ taxes,” and added: “If this is the best offer you can make, you may execute the [455] within deed, and send it to Mrs. M. at Green Bay to also sign and acknowledge, requesting her to forward it to the State Bank of Wisconsin in Milwaukee, where I will call and pay the money and receive the deed.” It was held that M. would have had a right to tender his deed at W.’s place of residence, which was at Mayville; that W.’s letter having fixed a different place for the delivery of the deed and the payment of the money, it was a qualified acceptance and no contract was made. In Helmholz v. Greene, 173 Wis. 306, 181 N. W. 221, where an offer was communicated by a broker to the owner and the owner accepted by telegram: “Accept nine thousand cash, purchaser to pay commission and satisfy tenant with whom I have only tentative agreement,” it was held a qualified acceptance and did not create a binding contract. In Clark v. Burr, 85 Wis. 649, 55 N. W. 401, A. gave an option to B. to buy certain land,' after which a building upon the land burned. The defendant accepted the option and in a separate writing demanded that the insurance money on the building be paid to him or applied on the purchase price. In this case both parties claimed there was a contract. It was there said: “The acceptance of an offer upon terms varying from those of the offer, however slight, is a rejection of the offer.” Citing National Bank v. Hall, 101 U. S. 43, 50. For further instances of qualified acceptance see Shores L. Co. v. Patterson, 98 Wis. 534, 74 N. W. 367; Baker v. Holt, 56 Wis. 100, 14 N. W. 8; Turner v. McCormick, 56 W. Va. 161, 49 S. E. 28, 107 Am. St. Rep. 904; Russell v. Falls Mfg. Co. 106 Wis. 329, 82 N. W. 134; 1 Page, Contracts (2d ed.) §§ 167-184. For cases holding that an inquiry or suggestion not amounting to a condition of acceptance is not a material variation, see Matteson v. Scofield, 27 Wis. 671; Kreutzer v. Lynch, 122 Wis. 474, 100 N. W. 887; Curtis L. & L. Co. v. Interior L. Co. 137 Wis. 341, 118 N. W. 853. The acceptance by tender of a check of a third party for [456] $150 presents an interesting question which we do not find it necessary to decide. In that connection attention is called to State ex rel. News P. Co. v. Park, 166 Wis. 386, 165 N. W. 289; Anno. 8 A. L. R. 1268; Anno. 11 A. L. R. 811. From what has been said it follows that the court erred in granting specific performance, there being no valid contract. By the Court. — Judgment of the circuit court reversed, and cause remanded with directions to dismiss the complaint.