Edichal Bullion Co v. D.C. Gold Mining Co

• Decision Date: 09 April 1891
• Citation: 13 S.E. 100,87 Va. 641
• Parties: Edichal Bullion Co. et al. v. Columbia Gold Mining Co. et al.
• Court: Virginia Supreme Court

13 S.E. 100

87 Va. 641

Edichal Bullion Co. et al.

v.Columbia Gold Mining Co. et al.

Supreme Court of Appeals of Virginia.

April 9, 1891.

Specific Performance — Insufficiency or Contract.

In an action to compel specific performance, the complaint alleged that A. procured a lease from plaintiffs, giving him the option of purchasing certain mining lands within a given period, and that he was the agent of defendants, and operating machinery on said lands for them beyond the time in which the option expired, and that defendants thereby became bound as purchasers. The complaint referred to certain letters that passed thereafter between the officers of the respective companies, and an unsigned memorandum that it alleged showed defendants had agreed to take the property on the terms of A. 's contract, and only were negotiating as to the times of making payments. Held, that the bill and correspondence referred to disclosed a failure on the part of the parties to agree upon a time of payment, which is essential to a contract for the sale or purchase of real estate.

Appeal from circuit court, Fluvanna county.

W. B. Pettit and W. W. Henry, for appellants.

T. S. Martin and A. A. Gray, for appellees.

Fauntleroy, J. The petition of the Edichal Bullion Company, a corporation, and of J B. Baker, J. W. Woodside, and M. R. Kirkpatrick, as individuals, represents that they, and each of them, are aggrieved and injured by the decree rendered by the circuit court of Fluvanna county on the 12th day of April, 1889, in the chancery cause pending therein, in which the Columbia Gold Mining Company, a corporation, is complainant, and the said petitioners and one H. H. Eames are defendants. The original bill was filed against the said Edichal Bullion Company, as a non-resident and foreign corporation, for the purpose of enforcing specific perform ance of an alleged contract for the purchase by it, from the said Columbia Gold Mining Company, of real estate lying in the counties of Goochland and Fluvanna, Va., known as the " Tellurium Gold Mining Property;" and, simultaneously with the institution of the suit, on the 9th day of July, 1886, an attachment was sued out and levied upon the interest which it was alleged the said Edichal Bullion Company owned in about 1, 100 acres of laud, lying mostly in the said county of Fluvanna, known as the "Bowles Mining Property, and upon some personal property. To the original bill, and two successive amended bills filed by the complainants, the defendant company demurred and answered. The circuit court overruled the demurrer, and by the decree complained of held that there was a contract for the sale, by the Columbia Gold Mining Company to the defendant the Edichal Bullion Company, of the tellurium gold mining property, as set forth in the bill, to have been made on the 7th day of November, 1885, and decreed specific performance of the same by the defendant company; and also decreed against the individual members of the said defendant company as securities for the defendant company. The case made by the original and amended bills was demurred to, as wanting in all the essential requisites of a suit for specific performance, because it does not show that any distinct and definite contract of sale and purchase was made; nor when, where, how, and by whom it was made, and that the person making it had authority to bind the defendant company; nor whether the alleged contract was by parol or in writing; nor whether there was any express contract made by the defendant company, or by any authorized agent for it, either by parol or in writing. It is merely stated, argumentatively, that inasmuch as H. H. Eames had, on the 7th day of February, 1885, procured a contract of lease from the complainant company, giving him the option of buying the tellurium gold mining property, upon certain terms, within a limited time, and was, as they allege, the agent of the defendant company, operating its machinery on the premises which he had leased, with the option to buy on or before the 7th day of November, 1885; and inasmuch as his said experimental operations were continued beyond the day upon which, by the express terms of his contract, his said option was to cease, —therefore the said Edichal Bullion Company had become bound to buy, and had bought, the property upon the terms stipulated in the written contract between the complainant company and the lessee, H. H. Eames, made more than six months before the defendant Edichal Bullion Company had any existence in fact or in law; that the bills do not show that Eames himself, within the time limited, availed of his option to buy the property, by notice to that effect, or by offering to pay the purchase money; nor that the complainant company was, on the next day after the expiration of the option contract with Eames, under any obligation to sell to him, much less that it was under any obligation to sellthe property to the defendant Edichal Bullion Company.

In the case of Iron Co. v. Gardiner, 79 Va. 305, Judge Lacy, speaking for this court, said: "Can there be a contract without mutual obligation? Can there be an agreement between two parties which binds one of them absolutely and the other only at his pleasure? Upon thisground no specific performance could properly have been decreed, since the want of mutuality in the contract should he considered a valid objection to the exercise of that jurisdiction." After charging, argueude, that the defendant company had, on the 7th of November, 1885, become the purchaser of the property in question, on the terms named in said contract, (with Lames,)—to-wit, $15,000, of which $7,500 was to be paid in cash, and the residue in three months with interest, —the bill refers to certain letters that afterwards passed between some of the officers of the respective companies, and to an unsigned memorandum, which are not exhibited with or made part of the bill, nor claimed as constituting the contract sought to be enforced, but as rendering plain that the defendant Edichal Bullion Company had agreed to take the property on the terms named in the contract with Lames, and only were negotiating for the times of making payments. The times of making payments are an important and essential element of a contract for the sale or purchase of real estate, —so essential that a failure to agree and distinctly to state as to them is a failure to agree upon any contract at all. The bill, and the correspondence referred to in it, show a failure to agree upon these important particulars of the alleged contract. And this reference further shows that no contract had been made on the 7th of November, as argued in the bill there had been; for it shows that on the 7th of November, 1885, the complainant company agreed with their lessee. Lames, to extend his option, which, under their written contract with him, would expire on that day, until the 12th of November; and that from the 13th of that month to the 31st of December, 18S5, the officers of the respective corporations were in treaty about the sale and terms of purchase of the property, and were never at one about them. See Iron Co. v. U. S., 118 U. S. 40, 42, 6 Sup. Ct. Rep. 928: "Until the terms of an agreement have received the assent of both parties, the negotiation is open, and imposes no obligation on either." "If it be doubtful whether an agreement has been concluded, or is a mere negotiation, chancery will not decree a specific performance. The principle is a sound one, and especially applicable in a case like this, where the party attempting to enforce this contract has done nothing upon it." Carr v. Duval, 14 Pet. 83. The case of Carr v. Duval, supra, was one in which the contract was sought to be, like the case at bar, deduced from correspondence, which was conducted, on the side of the parties against whom a specific performance was sought, by one who, in the language of the court, " was acting not for himself only, but for his sisters and brothers, without any express authority from them." The same learned judge, in delivering the opinion of the court in the case of Colson v. Thompson, 2 Wheat. 336, 341, said: "The contract which iB sought to be specifically executed ought not only to be proved, but the terms of it should be so precise as that neither party could reasonably misunderstand them. If the contract be vague or uncertain, or the evidence to establish it be insufficient, a court of equity will not exercise its extraordinary jurisdiction to enforce it, but will leave the party to his legal remedy. " In the case of Williams v. Morris, 95 U. S. 444, 456, Clifford, J., said: "The proof as to the terms of the contract must be clear, definite, and conclusive, and must show a contract leaving no jus deliberandi or locus penitenthi?;" and (on page 457) must clearly and satisfactorily show "the existence of the contract as laid in the pleadings, " and "the particular agreement charged in the bill or answer. " Relief in suits for specific performance is not granted by courts of equity ex debito justitiw, but under the sound discretion of the court. Railroad Co. v. Lewis, 76 Va. 835; Iron Co. v. Gardiner, 79 Va. 309. In granting such relief, the very first thing that is required is that the complainaut shall set forth and prove a contract certain and definite in its terms. Litterall v. Jackson, 80 Va. 612. The bill for specific performance of a contract made with an agent must, on its face, distinctly state the contract that was made, and show when, where, how, and by whom it was made, and that the person making it had authority to bind the company. Haden v. Association, Id. 683. In order that a contract can exist, there must be a consensus be tween the parties. Their minds must agree at the same moment to the terms constituting the contract. "The parties must agree to the same thing at the same time." 4 Minor, Inst. 16. "The assent must be to the precise terms offered." 3 Minor, Inst. 126. "Where...