Lacey v. Thomas

WOEVERTON, District Judge (after stating the facts as above). The crucial question involved by the controversy is whether there was a completed or consummated contract entered into between the parties for the sale by the defendant to the plaintiffs of the tract of land mentioned. In the view I take of the case it may be conceded that McClin-tock & Dacey were the agents of the plaintiffs, and acted for them in that relation in every step taken looking to the consummation of the alleged contract. So we may lay aside any question of agency, except to remark the real character of the instrument denominated “Agents’ Authority to Sell.” Without more — -that is, independent of further correspondence or negotiations between the parties — this paper must be considered to have constituted a completed agents’ contract, authorizing the sale of the land in behalf of the defendant and the execution of a binding contract to that end. Furthermore, the contract having recited that valuable services had been and were to be performed by the agents, there was consideration sufficient, prima facie, to support it. The recitation is tantamount to an admission in the writing to that effect, concluding the parties, until rebutted by competent and sufficient proof to the contrary. 6 Am, & Eng. Enc. of Eaw, 765. The effect, however, [626] of the two letters immediately succeeding the execution of this contract was to abrogate it entirely; the reason inducing the abrogation being the refusal of the defendant’s wife to sign a deed of conveyance upon the terms specified. Following upon the reason assigned, the defendant directed the agents that there was no use to try to make a sale, to which they assented; their language being, “We won’t kick.” The expression is forcible, and not to be misunderstood, however inelegant it may be considered. The agents then requested the defendant to give them the lowest price he and his wife would be willing to accept as an inducement to sign a deed for the property, and to give them a 10-day option to purchase at- the price named. In closing their letter they say: “When we hear from you we will say what we can do.” The effect of these letters is persuasive and convincing that the in-tendment of the parties was to set the entire matter at large again, and to open new negotiations looking to concluding another and different and distinct contract, if they were able so to agree. McClintock & Lacey’s letter, consenting to a revocation of the agents’ contract, opened the way for a new proposal from the defendant, and another and a new agreement. Responding, therefore, to their inquiry, the defendant proposed to sell for “$5,000 cash, but no less,” and concluded by saying: “So, if you want the place at that price, you can have it any time.” In brief, to bring the negotiations in close relation, the agents requested of the defendant that he and his wife should fix a price that they would be willing to take for the land, and to send them a 10-day option to purchase, promising that they would say what they could do when they heard from him. To this letter the defendant replied, four days later, proposing to take $5,000 cash for the place at any time. These are the terms of proposal of substance coming from either way, and at this juncture it is clear that there was yet no agreement, no final meeting of the minds of the parties, and hence no completed contract. Two days later, and probably in due course of return mail from Portland to Junction City, the agents replied: “We will accept your offer, and you can make out your deed and send it, together with your patent and abstract, to the Bankers’ & Lumbermen’s Bank of this city, to be turned over to us upon payment of $5,000. You will be able to get an abstract of title from O. B. Crosno, Toledo, Or. Leave the grantee’s name and consideration in the deed blank, so we can fill it in later.” To this there was no further answer on the part of the defendant, and the inquiry is whether these later negotiations resulted in a completed and binding contract between the parties. There was no assent whatever by defendant to McClintock & Lacey’s proposal to take a 10-day option for the claim, and the entire contract, if one subsists at all at the end of all negotiations, depends upon the last offer of the defendant and the legal consequence and effect of McClintock & Lacey’s rejoinder thereto. Whether the contract was concluded depends upon this inquiry: Was the rejoinder an unconditional acceptance of the substantial terms of defendant’s proposal ? The unvarying rule is thus stated: “An acceptance, to be effectual, must be identical with the offer and unconditional. Where a person offers to do a definite thing, and another accepts conditionally, or introduces a new term into the acceptance, his answer is either [627] a mere expression of willingness to treat or it is a counter proposal, and in neither case is there an agreement.” 9 Cyc. 267. Mr. Justice Washington states the rule in Eliason v. Henshaw, 4 Wheat. 225, 228, 4 L. Ed. 556, as follows: “It is an undeniable principle of the law of contracts that an offer of a bargain by one person to another imposes no obligation upon the former until it 's accepted by the latter according to the terms in which the offer war, made. Any qualification of or departure from those terms invalidates the .offer, unless the same be agreed to by the person who made it. Until the terms of the agreement have received the assent of both parties, the negotiation is ojien and imposes no obligation upon either.” The principle is distinctly approved and followed in a later case in the Supreme Court, namely, Carr v. Duval, 14 Pet. 77, 10 L. Ed. 361. So in James v. Darby, 100 Fed. 224, 227, 40 C. C. A. 341, 345, Rogers, District Judge, sitting in the Circuit Court of Appeals, Eighth Circuit, says: “The rule is unvarying, and 1:he authorities uniform, that in order to constitute an acceptance of an option, or an offer to sell, the accejitauce must be unconditional. There must be no new terms imposed, and no departure from ¡hose offered. ‘If to the acceptance a condition be affixed, or any modiiica-!ion or change in the offer be requested, by the party to whom the offer is nade, this, in law, constitutes a rejection of the offer.” The nicety and strictness with which the rule should be observed is characterized by the language of Severens, District Judge, sitting in the Circuit Court of Aopeals, Sixth Circuit, in Kleinhans v. Jones, 68 Fed. 742, 749, 15 C. C. A. 644, 651. He says: “Where it is apparent that one party has not consented to the several terms 10 which the other has agreed, no contract is formed. If the divergence is of anything which partakes of the substance of the contract at all. there is no legal agreement; and the court is not at liberty to speculate upon the question whether some stipulation which it might think of minor importance, or some variation which it might think would not have influenced the partios in making the contract, can be dispensed with, and the parties held, in disregard of them.” To like purpose see, further, Kelsey v. Crowther, 162 U. S. 404, 16 Sup. Ct. 808, 40 L. Ed. 1017, and Equitable Life Assur. Soc. v. McElroy, 83 Fed. 631, 28 C. C. A. 365. Under these authorities, treating defendant’s letter of the 18th as an offer to sell for a cash price of $5,000 (and such it was in reality in legal effect), the acceptance was coupled with conditions which, must-be deemed material and of substance, the most vital of which is that defendant was required to send an abstract of the title. It is also of importance that the deed was required to be made and executed in blank as it pertained to the name of the grantee, and that the money was made payable to the Bankers’ & Lumbermen’s Bank in Portland, rather than at Junction City, the place of residence of the defendant. While the defendant asserted that his title was good, his offer did not include the furnishing of an abstract, which would he of some trouble and expense to him. Furthermore, he proposed to sell to the agents, and to none other. Being agents for plaintiffs, the proposal might be considered as one to sell to the principals; but it could not be extended to include any one whose name the agents might deem expedient to [628] enter in the blank. It was also important that the defendant should be paid at the place of his residence. The implication of his offer was that he should be so paid. It cannot be said that the acceptance was flat, and that the other matters contained in the McClintock & Lacey letter of March 20th were mere suggestion; for the condition was imposed that the $5,000 should be paid at the Bankers’ & Lumbermen’s Bank of Portland, when the deed was executed as indicated, and it, together with an abstract of title, was sent to such bank. That such conditions were matters of substance can scarcely be questioned, and, under the strict rule of the law, the concluding letter of McClintock & Lacey did not constitute an acceptance of defendant’s offer to sell. For these reasons, the findings and judgment of the court must be for the defendant. The complaint of plaintiffs will therefore be dismissed.