Curtis Land & Loan Co. v. Interior Land Co.

• Decision Date: 15 December 1908
• Citation: 118 N.W. 853,137 Wis. 341
• Parties: CURTIS LAND & LOAN CO. v. INTERIOR LAND CO.
• Court: Wisconsin Supreme Court

137 Wis. 341

118 N.W. 853

CURTIS LAND & LOAN CO.

v.INTERIOR LAND CO.

Supreme Court of Wisconsin.

Dec. 15, 1908.

Appeal from Superior Court, Lincoln County; A. A. Helms, Judge.

Action by the Curtis Land & Loan Company against the Interior Land Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action is brought to compel the defendant to specifically perform a contract alleged to have been made for the sale of real estate. The contract is based entirely upon letters passing between the parties. On December 10, 1906, the plaintiff wrote the defendant as follows: “Will you please let us know your cash price per acre for SW SW 6-35-8.” Two days later the defendant answered, acknowledging receipt of this letter, and stating: “Will say our cash price on SW SW 6-35-8 is $6.00 per acre. Would be pleased to sell same to you.” On December 17th, plaintiff, replying to this letter, wrote as follows: “Your favor of the 12th inst. received. We will take your SW SW 6-35-8 Lincoln county Wisconsin, for your cash price of $6.00 per acre. Your records probably show the acreage which is 22.13 acres. If it is just as satisfactory to you, will you please send your deed to National Bank of Merrill for collection. Kindly have it made out to Curtis Land & Loan Co., a Wisconsin corporation. We note that this description was sold in 1903 and 1904 to F. J. Smith for delinquent taxes. Please take care of these taxes. We may later be able to do some business with you respecting your other descriptions in the section named, and are not ready to consider them just now.” On December 19th the defendant acknowledged receipt of this letter as follows: “Your letter of the 17th at hand and noted. Will say that our records do not show that this is a fractional forty, and we would have to investigate this further but we could sell it to you as we understand that this is a full forty. With reference to this description being sold for taxes to F. J. Smith, or in the name of F. J. Smith, are tax certificates we had him buy in for us. We will look this matter up promptly and let you know just as soon as we can have it looked up. We do not anticipate selling this forty for less than $240.00, which was at the rate of $6.00 per acre for the full forty. We will investigate and let you hear from us promptly.” The remaining portion of the correspondence consisted largely of claims made by the plaintiff that the foregoing letters constituted a complete contract, and of denials of such claims on the part of the defendant. The trial judge decided that a valid contract was entered into between the parties, and that the plaintiff was entitled to a decree for specific performance, and judgment was entered accordingly, from which judgment the defendant brings this appeal. In addition to contending upon the trial that the letters did not constitute a valid contract, the defendant likewise asserted that such letters were written by a representative of the defendant who had no authority to quote prices on the parcel of land in question, and that the defendant corporation was not bound by the acts of its agent in so doing.Jeffris, Mouat, Smith & Avery, for appellant.

Smart & Curtis, for respondent.

BARNES, J. (after stating the facts as above).

The appellant urges that the judgment appealed from is erroneous in the following particulars: (1) The court had no jurisdiction of the subject-matter of the action. (2) The contract is executory and is without consideration, and equity will not enforce specific performance of such a contract. (3) The letters passing between the parties did not make a contract. (4) No competent evidence was offered to show the acreage of the parcel of land in controversy. (5) The agent and officer of the defendant corporation who carried on the correspondence in its behalf had no authority to bind his principal. (6) The alleged contract was void under section 2304, St. 1898.

The first, second, third, and sixth errors assigned are so correlated that they may well be treated together. No claim is urged upon our consideration to the effect that the superior court of Lincoln county had not jurisdiction concurrent with that of the circuit court of such county to try actions brought to compel specific performance. The first error assigned is, in fact, predicated upon the proposition that no contract was entered into between the parties, and, in any event, if the writings are held to constitute a contract, the plaintiff's appropriate remedy is an action at law to recover damages for the breach of such contract. The second, third, and sixth alleged errors relate solely to the legal effect that should be given the letters passing between the parties and constituting the alleged contract. It is the settled law of this state that a valid and binding contract for the sale of real estate may be made through the medium of letters. It is just as well settled that, in case of a breach of such contract on the part of the vendor, the vendee may enforce specific performance, and that, in the event of a breach on the part of the vendee, the vendor may maintain an action to recover the purchase price. The promise to pay on the part of the vendee is a sufficient consideration for the agreement to sell by the vendor. North-Western Iron Co. v. Meade, 21 Wis. 474, 94 Am. Dec. 557;Clark v. Burr, 85 Wis. 649, 55 N. W. 401;Baker v. Holt, 56 Wis. 100, 14 N. W. 8;Matteson v. Scofield, 27 Wis. 671;Kreutzer v. Lynch, 122 Wis. 474, 100 N. W. 887;Taylor v. Bannerman, 120 Wis. 189, 97 N. W. 918. The cases cited hold that such letters must contain all the elements necessary to constitute an unambiguous contract, and that there must be contained therein a definite offer to sell on the part of the owner of the land and an unqualified acceptance of such offer on the part of the purchaser. The vendee in his letter of acceptance may not attach any condition to such acceptance, even to the extent of undertaking to dictate the place where payment shall be made. If his attempted acceptance is coupled with any condition that varies or adds to the offer to sell, it is not an acceptance, but is in reality a counter proposition. North-Western Iron Co. v. Meade, supra; Baker v. Holt, supra. Where the letter of acceptance contains a mere suggestion or request that payment be made at a particular place, but such request is not a condition attached to the acceptance, it does not amount to an attempt to vary the terms of the offer to sell, and will not defeat an action for specific performance. Matteson v. Scofield, 27 Wis. 671;Kreutzer v. Lynch, 122 Wis. 474, 100 N. W. 887. Applying these principles of law to the errors under consideration, the case does not present any unusual difficulties.

The letter of defendant written December 12, 1906, was ambiguous as to the parcel of land which was the subject thereof, although both parties undoubtedly understood it to refer to the southwest quarter of the southwest quarter of section 6, township 35 north, of range 8 east, in Lincoln county. The ambiguity consisted in the correspondence up to this point not showing the state in which the land was located, or whether the township was north or south or the range east or west. Plaintiff's letter of acceptance referred to the land as being located in Lincoln county, Wis., and with this addition to the description referred to in the former correspondence there was no ambiguity about it whatever. This was the letter that resulted in the final consummation of the agreement. In addition to accepting defendant's offer, it cleared up something that the parties had in mind by making it a part of the writings. The defendant made no protest against the declaration that the land was located in Lincoln county, and does not now make any claim that both parties did not perfectly comprehend and understand that they were dealing with land correctly described in the letter last referred to. The addition of the words “Lincoln county, Wisconsin,” to the description in plaintiff's letter of acceptance, attached no condition to the offer to sell, but elucidated something that was perfectly apparent to the contracting parties, and clarified the situation by obviating the objection that the writings were not sufficiently definite as to description. Plaintiff's letter of acceptance also contained the following statement: “We note that this description was sold in 1903 and 1904 to F. J. Smith for delinquent taxes. Please take care of these taxes.” This letter makes it clear that the plaintiff expected the defendant to take care of the outstanding tax certificates mentioned in the letter. If this portion of the letter contained any requirement that was not comprehended in the defendant's offer to sell, then it may well be asseverated that plaintiff did not make an unqualified acceptance, but a conditional one, and that therefore no contract was made. If the legal effect of defendant's offer to sell the land at a stated price was that it should furnish a marketable title free and clear of outstanding liens and incumbrances, then the paragraph quoted added nothing to the defendant's proposition to sell, and did not constitute a counter proposition. The defendant's offer to sell is silent as to the nature of its title and as to the character of the conveyance which it purposed giving. But the law seems to be well settled that an agreement in general terms to convey real estate, without specifying the nature of the title held by the vendor, or the kind of a deed which is to be given, calls for a...