Anderson v. Stewart
| Decision Date | 28 April 1948 |
| Docket Number | 32329. |
| Citation | 32 N.W.2d 140,149 Neb. 660 |
| Parties | ANDERSON et al. v. STEWART. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. An acceptance may be transmitted by any means which the offeror has authorized the offeree to use and, if so transmitted, is operative and completes the contract as soon as put out of the offeree's possession, without regard to whether it ever reached the offeror, unless the offer otherwise provides.
2. The request or authorization to communicate the acceptance by mail is implied where a person makes an offer to another by mail and says nothing as to how the answer shall be sent.
3. Revocation of an offer may be made by a communication from the offeror received by the offeree which states or implies that the offeror no longer intends to enter into the proposed contract, if the communication is received by the offeree before he has exercised his power of creating a contract by acceptance of the offer.
4. The acceptance of an offer to buy or sell real estate must be an unconditional acceptance of the offer as made; otherwise no contract is formed. There must be no substantial variation between the offer and the acceptance. If the acceptance differs from the offer or is coupled with any condition that varies or adds to the offer, it is not an acceptance, but is a counterproposition.
5. An acceptance specifying a different place for the delivery of the conveyance or payment of the price from that stated in the offer or implied as a matter of law is not a sufficient unconditional acceptance.
6. If no place for payment is specified in the offer, where the negotiations are carried on by correspondence, it is implied that payment is to be made to the vendor in the city where he resides.
7. If no place for delivery is specified the vendor is entitled to have the transaction closed where he lives.
Dwyer & Dwyer, of Weeping Water, and VanPelt, Marti & O'Gara, of Lincoln, for appellants.
George B. Hastings, of Grant, for appellee.
Heard before SIMMONS, C. J., MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ and BARTOS and JACKSON, District Judges.
Appellants Alma Anderson and Clyde Anderson, who are wife and husband and who were plaintiffs below, brought this action in the district court for Cass County. The action was brought for the purpose of having the court require the appellee, Hallie Stewart, to specifically perform the terms of the contract which they allege she entered into with them. From a decree dismissing their petition, motion for new trial having been overruled, appellants appeal.
For convenience the parties will be referred to as appellants and appellee, except when it is necessary to refer to the Andersons separately when they will be referred to as either Mr. or Mrs. Anderson.
It is either admitted or the record establishes that the appellee, who is a widow and who was the defendant below, was and is the owner of the north half of Lot 15 and all of Lots 16, 17, and 18, Block 23 of Railroad Addition to the town of Imperial, Chase County, Nebraska; that on February 23, 1946 appellee entered into a lease with appellants renting to them this property for the period from March 25 1946, to March 25, 1947; that this lease contained the following provision: 'Lease subject to sale with the option to parties of the second part to purchase same;' and that this provision was understood and construed by the parties to the lease to give appellants the first opportunity to buy this property if the appellee should decide to sell during the term of the lease.
Having decided to sell, appellee, in accordance with this understanding did, on July 6, 1946, send a letter from her home at Eagle, Nebraska, to Mrs. Anderson, at Imperial, Nebraska, where the Andersons live. In this letter, insofar as it is here material, she advised Mrs. Anderson as follows:
Although there was additional correspondence between the parties in relation to this offer, however, it was not in any manner modified thereby and remained in effect until the appellee, on July 30, 1946, wrote to Mrs. Anderson advising as follows: 'I hereby withdraw my offer and the place is not for sale at any price.' This letter Mrs. Anderson received on July 31, 1946.
However, the evidence shows that on July 30, 1946, Mrs. Anderson wrote to appellee as follows: This letter was mailed by Mrs. Anderson on July 31, 1946, at Imperial, Nebraska, before she received the letter of appellee dated July 30, 1946.
'Revocation of an offer may be made by a communication from the offeror received by the offeree which states or implies that the offeror no longer intends to enter into the proposed contract, if the communication is received by the offeree before he has exercised his power of creating a contract by acceptance of the offer.' Restatement, Contracts, § 41, p. 49.
We find the acceptance was mailed before the letter withdrawing the offer was received and, under these principles, a contract was entered into if the acceptance was unconditional, for, as set forth in 55 Am.Jur., Vendor and Purchaser, § 16, p. 483: As stated in 66 C.J., Vendor and Purchaser, § 61, p. 523: '* * * an acceptance of an offer to sell or purchase real estate must be identical with the offer and unconditional, and so if the offeree accepts conditionally or introduces a new term or condition into the acceptance, or in any other manner makes a counteroffer, the acceptance is not effectual.' See, also, Krum v. Chamberlain, 57 Neb. 220, 77 N.W.
665; Ross v. Craven, 84 Neb. 520, 121 N.W. 451; Sennett v. Melville, 85 Neb. 209, 122 N.W. 851; Smith v. Bertrand, 107 Neb. 301, 186 N.W. 83.
It will be observed that while the offer made no reference thereto, the acceptance directed the appellee to send the deed to the Farmers & Merchants Bank at Imperial, Nebraska, and that payment of the purchase price would be made there. While it might be argued that the language used in the letter of July 30, 1946, merely requested that the deed be sent to the bank at Imperial and did not require that it be done as a condition of their acceptance, however, the letter of Mrs. Anderson to appellee dated July 31, 1946, mailed immediately following receipt of appellee's letter withdrawing the offer, and her subsequent letter of August 6, 1946, clearly show that appellants did intend appellee should be required to send the deed to the bank as a requirement of their acceptance and did intend that the money should be paid there where they said it was on deposit.
We said in Lopeman v. Colburn, 82 Neb. 641, 118 N.W. 116: The vendor not living in Central City the court went on to say: 'It is also clear that it was not the province of the vendee to compel the vendor to deliver the deed and receive the consideration in Central City.'
'If no place for payment is specified in the offer, where the negotiations are carried on by correspondence, it is implied that payment is to be made to the vendor in the city where he resides.' 66 C.J., Vendor and Purchaser, § 61, p. 525, note 23b.
'If no place for delivery is specified (1) the vendor is entitled to have the transaction closed where he lives.' 66 C.J., Vendor and Purchaser, § 61, p. 525, note 24a.
We think what was said in Beiseker v. Amberson, 17 N.D. 215, 116 N.W. 94, 95, is applicable and controlling here. It was therein stated:
'In this case there was an unqualified acceptance of the offer so far as the price is...
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CHAPTER 11 PREFERENTIAL PURCHASE RIGHTS
...[95] Henderson v. Nitschke, 470 SW.2d 410 (Tex. Civ. App. 1971). In reaching its conclusion the court distinguished Anderson v. Stewart, 149 Neb. 660, 32 N.W.2d 140 (1948), in which the Nebraska court held that the owner could terminate a preference right before it was exercised where no ti......