Beiseker v. Amberson

• Decision Date: 27 March 1908
• Citation: 116 N.W. 94,17 N.D. 215
• Court: North Dakota Supreme Court

116 N.W. 94

17 N.D. 215

A. N. BEISEKER v. AMBROSE AMBERSON

Supreme Court of North Dakota

March 27, 1908

Appeal from District Court, Wells county; Burke, J.

Action by A. N. Beiseker against Ambrose Amberson. Demurrer to the complaint was sustained, and plaintiff appeals.

Affirmed.

Bessessen & Berry, for appellant.

Mailing acceptance of offer completes the contract. 9 Cyc. 295.

Requests and suggestions do not render acceptance conditional. Kreutzer v. Lynch, 100 N.W. 887; 9 Cyc. 269; 9 Cyc 290; Stevenson v. McLean, 5 Q. B. D. 346; Clark v. Dales, 20 Barb. 42; Brisban v. Boyd, 4 Paige, 17; Culton v. Gilchrist, 61 N.W. 384; Stotesburg v. Massengale, 13 Mo.App. 221; Philips v. Moor, 71 Me. 78; Brown v Cairns, 66 P. 1033; Cavender v. Waddingham, 5 Mo.App. 457; Johnson v. Talley, 10 Lea, 248.

Tender is unnecessary when it is apparent that it will not be accepted. 28 Am. & Eng. Enc. Law (2d Ed.) 7; Blight v Ashley, 1 Pet. 15; Keller v. Fisher, 7 Ind 718; Sonia Cotton Oil Co. v. Steamer Red River, 106 La.Ann. 42; Girard v. St. Louis Car Wheel Co., 123 Mo. 358; Enterprise Soap Works v. Sayers, 55 Mo.App. 15; Martin v. Fayetteville Bank, 131 N. Car. 121; Sanford v. Royal Ins. Co., 10 Wash. 202.

If for any reason a tender would be idle and useless, it is unnecessary. 29 Am. & Eng. Enc. Law (2d Ed.) 691; Reynolds v. Reynolds, 45 Mo.App. 622; Kester v. Rockel, 2 W. & S. 365; Nau v. Jackman, 58 Iowa 359; Furman v. Rapelje, 67 Ill.App. 31.

John O. Hanchett, for respondent.

Acceptance of an offer must be in accordance with its terms and unconditional. 11th Cent. Digest Col. 106-109; Carr v. Duval, 39 U.S. 77, 10 L. R. A. 361; Baker v. Holt, 14 N.W. 8; N.W. Iron Co. v. Mead, 21 Wis. 474, 94 Am. Dec. 557; Knight v. Cooley, 34 Iowa 218; Clark v. Burr, 55 N.W. 401; Russel v. Falls Mfg. Co., 82 N.W. 134.

Where no time or place of performance is provided, and the obligations of both are to be simultaneously performed, a tender, demand and refusal must be shown before suit can be maintained. Arnet v. Smith, 11 N.D. 55, 88 N.W. 1037; 11 Century Dig. Col. 1148, 1458, 1460; Hawley v. Mason, 33 Am. Dec. 522; Provost v. Putnam, 19 L. Ann. 84; Brown v. Gammon, 14 Me. 276; Worley v. Mourning, 4 Ky. 254; Morey v. Enke, 5 Minn. 392.

OPINION

MORGAN, C. J.

This is an action for damages claimed under an alleged breach of a contract to sell and convey real estate. The alleged contract on which the action is based is evidenced solely by the following letters which passed between the parties and are made a part of the complaint, viz: On June 6, 1906, plaintiff wrote to the defendant as follows: "A. N. Beiseker * * * A. Amberson, Esq., Snohomish, Wash.--Dear Sir:--Do you wish to sell your store building and lot in Harvey? If so, what is the very lowest spot cash price you will take, if I buy the place within 10 days from the time I get your answer from you to this letter. I have the cash and would buy the building if you wish to sell reasonable. Please let me hear from you by first mail and greatly oblige, Yours truly, A. N. Beiseker." On June 20th defendant answered plaintiff's letter as follows: "Mr. A. N. Beiseker, Harvey, N.D.--Dear Sir: Your favor at hand and in reply must say I cannot give you my price on my property in Harvey, at present, on account of a party who is wanting to buy it, but as soon as I hear from him will let you know at once. Yours respectfully, A. Amberson, R. F. D. No. 1." On July 16th defendant wrote to the plaintiff as follows: "Snohomish, Wash., 7-16-06. * * * In reply to your favor of some time ago. My price on my store building and lot in Harvey is $ 2,500--part cash and on time and $ 2,300--net cash to me. Please answer at once and oblige. * * * A. Amberson." On July 20th plaintiff wrote to the defendant as follows: "I am just in receipt of your favor of the 16th inst., and contents noted. I will accept your cash proposition on your business building and lot on cash basis, namely $ 2,300.00, and beg to hand you herewith my check for $ 100.00 and will ask you to make out the deed to John W. Yelland and send the same to the German State Bank of Harvey, N. Dak., or First International Bank, Portal, No. Dak., with a letter stating for them to deliver this deed to me when I pay the balance of $ 2,200.00, which I will do as soon as received at either bank. You will have the deed made out and have it signed by you and your wife and then send this with your abstract to which ever bank of the two named above that you wish, and I will pay the balance on receipt of the deed and abstract at the bank. In this way the bank won't deliver the deed or the abstract until I have paid the $ 2,200.00. You will kindly assign the insurance policies that you have to John W. Yelland and send them along with the deed. This is in accordance with your letter of the 16th inst. in which you say that you will take $ 2,300.00 net cash to you. Yours truly, A. N. Beiseker. P. S. Please advise me what bank you send the deed to so that I can call at the bank the day it reaches here or Portal and take it up." On July 28th defendant answered plaintiff's last letter as follows: "I inclose you herewith and return to you your check sent to me, as it came a little too late. Hence the party I spoke of in my letter to you accepted my figures and by right is the first although there is a point between us and if we don't agree I will let you know. * * * A. Amberson." Immediately after the receipt of defendant's letter of July 28th, the plaintiff commenced this action, and seeks to recover the sum of $ 500 damages. The complaint is framed on the theory of an offer in writing to sell real estate for a specific price and an unconditional acceptance of such offer in writing, thereby making a binding contract to sell the real estate. The defendant demurred to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action. The trial court sustained the demurrer, and the plaintiff has appealed from the order sustaining the same.

It is an elementary principle in the law of contracts that an unqualified acceptance by letter in answer to an offer submitted by letter creates a binding contract in writing. It is also equally well established that any counter proposition or any deviation from the terms of the offer contained in the acceptance is deemed to be in effect a rejection, and not binding as an acceptance on the person making the offer, and no contract is made by such qualified acceptance alone. In other words the minds of the parties must meet as to all the terms of the offer and of the acceptance before a valid contract is entered into. It is not enough that there is a concurrence of minds of the price of the real estate offered to be sold. If the purchaser adds anything in his acceptance not contained in the offer, then there is no contract. In this case there was an unqualified acceptance of the offer so far as the price is concerned. After that the acceptance advances terms by the writer as to the carrying out and execution of the contract that were in no manner contained in the offer. Among the new terms imposed by the plaintiff was the one asking the defendant to send the deed to one of two banks named in the letter. The defendant was entitled as a matter of law to have the cash price paid to him at Snohomish, Wash., where the offer was made; and without his consent he was not compelled to send the deed to any place or bank until the price was paid. If plaintiff had accepted the offer unconditionally, his right to a deed could...