Comstock v. North

• Decision Date: 25 June 1906
• Citation: 88 Miss. 754,41 So. 374
• Court: Mississippi Supreme Court
• Parties: ANDREW W. COMSTOCK ET AL. v. JOSEPH E. NORTH

41 So. 374

88 Miss. 754

ANDREW W. COMSTOCK ET AL. v. JOSEPH E. NORTH

Supreme Court of Mississippi

June 25, 1906

April 1906

FROM the chancery court of Harrison county, HON. J. O. S. SANDERS Special Chancellor.

Comstock and another, partners under the name Comstock Brothers, the appellants, were the complainants in the court below; North the appellee, was defendant there.

The object of the suit was to cancel, as a cloud upon title, a writing, in form of a letter, written by complainants to defendant, under which the defendant asserted a right in and to a large tract of valuable land and to confirm the complainants' title thereto. The defendant made his answer a cross-bill, and sought to have the letter adjudged to be an irrevocable option for the sale of the land by complainants to defendant and for its specific performance. The original bill was dismissed by complainants, but the suit was ordered to and did proceed upon the cross-bill to which the complainants demurred. From a decree in defendant's favor, overruling the demurrer to the cross-bill, the complainants appealed to the supreme court.

The letter is given and the facts are stated in the opinion of the court.

Decree reversed and cross-bill dismissed.

E. J Bowers; James H. Neville; Virgil A. Griffith, and Shivers & Shivers, for appellants.

The letter, written by one partner, is not binding on the firm but if binding it is void for uncertainty and is so unfair that a court of equity will not decree its specific performance.

The letter, the basis of the cross-bill, had no binding force except so long as the complainants saw fit to observe it. It was without consideration and utterly lacking in mutuality. It goes no further than to say that if at any time prior to February 1, 1904, North desired to take the lands they would sell "eight-ninths at the rate of twenty dollars per acre," and that in the meantime he might look the lands over with a view of determining whether he desired to purchase. There is absolutely no agreement on North's part to do anything, at least no agreement in writing. He was not bound to look over the lands or to accept the offer. It was a privilege that he had, and that he might exercise if he saw fit. He undertook no responsibility or obligation, and there was no consideration of any character moving toward the Comstocks. Such a paper can not in any proper or legal sense be styled an option. It is at most a continuing offer which the makers had a right to withdraw whenever they saw fit, and that without reference to whatever expense or trouble may have been incurred by the party to whom the offer was made. A contract in order to bind one party must bind both, and the failure or omission to bind North made it competent for Comstock to withdraw whenever he saw fit. It is a unilateral contract, which being incapable of enforcement against North, cannot be enforced against the other party. We have been at some pains to collate the authorities on this question, which are as follows:

A promise is not a good consideration for a promise unless there is absolute mutuality of engagement, so that each party has the right at once to hold the other to a positive engagement. Styles v. McClelland, 6 Col., 89; Bailey v. Austrian, 19 Minn. 535; Townsend v. Fisher, 2 Hilt. (N. Y.), 47.

Mutual promises must be concurrent and obligatory on both parties at the same time. Livingston v. Rogers, 1 Caines (N. Y.), 538; Keep v. Goodrich, 12 Johnson (N. Y.), 397; M. & B. Plank Road Co. v. Snediker, 18 Barbour (N. Y.), 317; Slee v. Bloom, 10 Am. Dec., 273; Stewart v. Hamilton College, 2 Denio (N. Y.), 403. See, especially, Bierber v. Beck, 6 Pa. 198. See Devey v. Lumberman Mining Co., 93 Mich. 491; Mers v. Frank. Ins. Co., 68 Mo. 127.

An offer to sell at a fixed price, whether accompanied with an agency to sell to others or not, may be revoked at any time prior to the acceptance of the offer, unless there is an express agreement on good consideration to accept within a limited time, or when other acts are done by which the person making the offer consents to be bound. Stitt v. Huidekoper, 84 U.S. (17 Wall.), 384 (21 L. ed., 644).

This case is directly in point. Where an offer is made by letter or messenger it may be revoked at any time before the offer is received by the one to whom the offer is made. Revocation, in law, is made when it is received, and has no legal existence before. The Palo Alto Fed. Case No. 10,700 (2 Ware, 344; Dav., 343).

The assent of the minds of both parties is necessary to constitute a contract, and if one makes a proposition, he may recall it at any time before its acceptance. Stanford v. Howard, 29 Ala. 684.

A written proposition for the sale of land, without consideration, and not under seal, wherein the time of acceptance is limited, may be withdrawn by the party making it at any time before its acceptance. Laimon v. Jordan, 56 Ill. 204.

Although an offer designates a time within which it may be accepted, the party making it may withdraw it within the time and before its acceptance. School Directors v. Trefthren, 10 Ill.App. (10 Bradw., 127).

Where an acceptance of a contract is to be made by mail, the proposer may withdraw his offer at any time before the posting of a letter accepting it. Gregg v. Wooliscroft, 52 Ill.App. 214.

The offer of a reward for the performance of a certain service is until performance a mere proposal, and not a contract, and may be revoked at pleasure. Harson v. Pike, 16 Ind. 140.

A mere proposal to sell may be revoked at any time before acceptance. Miller v. Douville, 45 La. Ann., 214 (12 So. 132).

Plaintiff placed a contract of sale of land with defendant's agent, with a parol condition that, if he was not notified within a certain time of its acceptance, it should be void. Notice was not given in the time named, and plaintiff gave notice that he withdrew the offer made by thus placing the contract. Held that the contract of sale was not binding on plaintiff. Stevens v. Buffalo & N. Y. C. R. R. Co., 20 Barb. (N. Y.), 332.

Where an offer to carry freight for a certain rate is withdrawn before acceptance an amount paid in excess of that cannot be recovered as for breach of contract. Bouker v. Long Island R. R. Co., 89 Hun., 132 (35 N.Y.S. 30).

M. offered to sell land to the city of New York at a price named, and then formally withdrew his offer. Subsequently the city council authorized the comptroller to purchase the land and pay in city bonds. Then M. tendered a deed and demanded payment according to the price named in his offer. Held, that the city had not bought nor agreed to buy, and was not liable for the price. McCotter v. City of New York, 35 Barb., 609.

An option of a contract for the sale of oil without consideration paid, may be withdrawn at any time before acceptance. Bosshardt & Wilson Co. v. Crescent Oil Co., 1 Pa. 109. See also 32 Ala. 1120.

And to the same effect, see Houghwont v. Boisaubin, 18 N. J. Eq., 315; Weiden v. Woodruff, 38 Mich. 130; Lincoln v. Gay, 164 Mass. 537; Craig v. Harper, 57 Mass. 158; Isham v. Therasson, 53 N. J. Eq., 10; Quick v. Wheeler, 78 N.Y. 300; Ft. Edward v. Fish, 86 Hun. (N. Y.), 548; Sprague v. Train, 134 Vt. 150; Johnson v. Filkinton, 139 Wis. , 62; Miller v. Douville, 45 La. Ann., 214 (12 So. 132).

"Undoubtedly if the offerer gives a day for acceptance, without consideration for the delay, he may at any time within that day, before aceptance, recall his offer. So he may if he gives no time. If he makes an offer, and instantly recalls it before acceptance, although the other party was prepared to accept it the next instant, the offer is effectually withdrawn. . . . It may be said that whether the offer be made for a time certain or not, the intention or understanding of the parties is to govern. If the proposer fixes a time he expresses his intention, and the other party knows precisely what it is. If no definite time is stated, then the inquiry as to a reasonable time resolves itself into an inquiry as to what time it is rational to suppose that the parties contemplated; and the law will decide this to be that time which as rational men they ought to have understood each other to have in mind." 1 Parsons on Contracts, 482.

Our own case of Kolb v. Land Co., 74 Miss. 567, is directly in point. In that case Mr. Kolb signed and delivered a written authorization to the land company to sell his land at a given price, agreeing to give them ten per cent commission, providing also they should have the exclusive agency to sell the lands for a given time, and should have a commission without reference to who effected the sale, the contract to exist till January 1, 1896. Before that date, and without notice to the land company, Kolb sold his property and the land company sued him for the ten per cent commission. The company had taken steps to obtain purchasers; had advertised; had taken purchasers to see the property, and had otherwise incurred expenditures on the faith of the writing. The whole question is elaborately considered and examined in that case and such contracts pronounced void.

To the same effect see Federal Oil Co. v. Western Oil Co., 112 F. 393; Marble Co. v. Reiple, 10 Wall., 339-359 (19 L. ed., 95). Stitts v. Huidekoper, 84 U.S. (17 Wall.), 384 (21 L. ed., 644), is also on all fours with the instant cause.

The attempt is made in this case to save this letter from the rule above declared by an allegation of a parol consideration, independent of the letter, and prior thereto. On that point the bill is as follows:

"It was therefore agreed between this cross-complainant and the said defendant that this cross-complainant should at his own expense cause such investigation to be made, and in consideration thereof that the...