Athe v. Bartholemew

• Citation: 69 Wis. 43,33 N.W. 110
• Parties: ATHE AND ANOTHER v. BARTHOLEMEW AND ANOTHER.
• Decision Date: 01 June 1887
• Court: United States State Supreme Court of Wisconsin

69 Wis. 43

33 N.W. 110

ATHE AND ANOTHER

v.BARTHOLEMEW AND ANOTHER.

Supreme Court of Wisconsin.

June 1, 1887.

Appeal from circuit court, Clark county.

Ring & Youmans, for appellants.

R. J. MacBride and C. F. Grow, for respondents.

TAYLOR, J.

This action is brought to recover damages for an alleged breach of contract to convey lands to the plaintiffs which they allege they had purchased from the defendants. On the trial the court ordered the plaintiffs to be nonsuited, and from the judgment in favor of the defendants the plaintiffs appeal to this court.

The only question in the case is whether the evidence introduced by the plaintiffs showed a valid contract with the defendants for the purchase of the lands described in the complaint. It is admitted that there was no formal contract in writing between the parties, but, on the part of the appellants, it is insisted that the correspondence between the parties shows an existing and binding contract for the purchase and sale of the lands in question. For the purposes of this appeal it may be admitted that the evidence shows that the defendants were previous to January 30, 1884, and down to October 8, 1885, the owners of the lands in controversy, and that all of the said lands were situate in township 23 N. of range 1 E.

The evidence relied upon by the plaintiffs to prove the contract is-- First a letter purporting to be written and signed by the defendants, bearing date at Vannessa, Ontario, January 30, 1884. The following is a copy of the letter after the date:

“ S. & J. C. Athe, Fort Madison, Iowa--GENTS: Yours of 26th to hand, asking us to name price on our lands in 23, 1 E. We do not care to dispose of it in small lots. We herewith enclose you a list of our lands in 23, 1 E. Will sell all or none, as we have had quite a number of applicants. We are open to sell if price suits. Will you make us an offer for the whole? If so, please state price, and terms easy,

+--------------------------------------+
                ¦Yours respy.,¦J. A. & H. BARTHOLEMEW.”¦
                +--------------------------------------+
                

The list of lands referred to in this letter was produced on the trial by the plaintiffs. No further written communications were had between the parties until October 8, 1885, when the following telegram was written and sent:

“LA CROSSE, October 8, 1885.

J. A. Bartholemew: What is your lowest cash price for all the pine land?

+------------------------------------------+
                ¦[Signed]¦R. FAHEY, Agt. for S. & J. Athe.”¦
                +------------------------------------------+
                

The evidence shows that this telegram was received by the defendants at Neillsville, in this state, on the same day, and was immediately answered by a telegram written by J. A. Bartholemew as follows:

“NEILLSVILLE, WIS., October 8, 1885.

R. Fahey: Twenty-three thousand five hundred dollars. Must know by 2:30 to-day.

+-----------------------------+
                ¦[Signed]¦J. A. BARTHOLEMEW.” ¦
                +-----------------------------+
                

The above are all the written communications between the parties.

The proof shows that Fahey received the telegram of J. A. Bartholemew at La Crosse about 2 o'clock P. M. After the receipt of this telegram by Fahey at La Crosse, he communicated with the defendants by telephone, and asked further time, and there is evidence tending to show that the defendants extended the time by telephone to 4 o'clock P. M., same day. And at 3:45 P. M., same day, Fahey telephoned from La Crosse to the defendants at Neillsville as follows: “The Athes accept your proposition, and will take the pine land at the price offered, twenty-three thousand five hundred dollars.”

The learned circuit judge, in deciding the case, says “that the testimony, taken together, does not make a contract, and that if everything else was proved, that the plaintiffs have failed because their alleged acceptance was not in writing but by parol, and that the contract, and the whole contract, must be in writing.”

After a careful reading of the evidence in the case, we are satisfied that the learned circuit judge was right in holding that the evidence was not sufficient to sustain the plaintiffs' action. In the first place, we think there are grave doubts whether the correspondence, which it is alleged constitutes the contract between the parties, sufficiently describes the lands purchased. It is true, the evidence shows that in January, 1884, the defendants sent the plaintiffs a list of lands owned by them in a certain township in this state, and there is a strong presumption that the further correspondence relates to the lands described in such list. But this list was sent more than 18 months before the inquiry was made by the plaintiffs in regard to the price at which the defendants would sell their lands. And the inquiry then was as to the price of all the pine land. The list furnished 18 months before does not describe the lands as pine lands, and it must be shown, therefore, by parol evidence, either that the words in the inquiry referred to the list furnished before, or the words “all the pine lands” might mean all such lands then owned by the defendants in the state, county, or township mentioned in said list. Had the parol evidence clearly established the fact that only a small part of the several tracts described in the list sent by defendants to plaintiffs were pine lands, could the plaintiffs have compelled the defendants to convey all of said tracts, were it admitted that the contract were sufficient in the law to bind the parties? We think it doubtful whether a purchase of all the pine lands owned by the defendants, without other description, would cover any lands which are not in fact pine lands, and that it would be incompetent to show by parol that the contract was intended to cover all the lands owned by the defendants. We are not, however, disposed to place our decision in this case upon the want of a sufficient description of the property, about which there were negotiations. We think the plaintiffs entirely fail to show that Fahey, who accepted the offer made by the defendants, had any authority to accept such offer on their behalf when he so accepted it. It will be noticed that neither of the plaintiffs appeared as witnesses in their own behalf to prove the authority of Fahey, and the evidence of Fahey himself is of too vague and unsatisfactory a nature to justify a court or jury in holding that he had authority to bind his principals by a purchase of this magnitude. It is also to be noticed that the only written communication between the plaintiffs and Fahey about this purchase very clearly indicates that they had given him no power to bind them by any definite agreement without first consulting with them about its terms. The written communication referred to was contained in a letter written by the plaintiffs to Fahey probably on the eighth of October, 1885, and was not received by him until after he claims to have bound them by his contract with the defendants. In this letter they say: “When you were here, nothing was said about terms or time, and we wired you to take the timber if terms and time could be made satisfactory. If we buy, the title must be looked after as a...