Ellis v. Federal Land Bank of Omaha
| Citation | 113 P.2d 954,57 Wyo. 176 |
| Decision Date | 11 June 1941 |
| Docket Number | 2189 |
| Parties | ELLIS ET AL. v. FEDERAL LAND BANK OF OMAHA ET AL |
| Court | United States State Supreme Court of Wyoming |
Rehearing denied without opinion, September 16, 1941.
ERROR to the District Court, Fremont County; H. R. CHRISTMAS Judge.
Action in ejectment by the Federal Land Bank of Omaha against Lillian G. Ellis, also known as Lillian Ellis, for recovery of land, wherein Lee Simonsen and the Yellowstone Sheep Company were subsequently made parties to the action and wherein Lee Simonsen filed a cross-petition. To review judgment for the plaintiff and the Yellowstone Sheep Company Lillian G. Ellis and Lee Simonsen bring error.
Affirmed.
For Lillian G. Ellis, one of the plaintiffs in error, there was a brief by A. H. Maxwell of Lander, E. E. Enterline and Madge Enterline of Casper, and oral argument by Mr. Enterline.
The signature of the plaintiff bank was placed on the contract in typing. The signature of plaintiff bank typed on the contract was binding. 19 C. J. S. 704, 708; 13 Amer. Jur. 781; Stromberg-Carlson Tel. Mfg. Co. v. Barber (Nebr.) 116 N.W. 157; Cook, Corp. 5th Ed., p. 1825, Art. 725. Defendant Ellis had a right to offer testimony explaining circumstances under which she signed the supplemental agreement. Sec. 89-1026, R. S. 1931; Boley v. Butterfield (Utah) 194 P. 129; Deitrich v. Darr (Kans.) 243 P. 1048. The supplemental agreement was without consideration. 13 C. J. 367, 592; 6 R. C. L. Sec. 91, p. 683; McFarland v. Heim (Mo.) 48 A. S. R. 629; L. R. A. 1915B 3. Parol evidence of the circumstances and position of the contracting parties should be considered. Milling Company v. Price et al., 4 Wyo. 293; Yellowstone Sheep Company v. Diamond Dot Livestock Company, 43 Wyo. 15. The lease contains no provision of forfeiture. 12 Amer. Jur. Sec. 436; Campbell v. Wyoming Development Company, 55 Wyo. 547; Healy v. Wostenberg, 47 Wyo. 375. The Sheep Company was chargeable with notice of the possession of Ellis. 66 C. J. 1167. Packard was the agent of plaintiff bank and it was bound by his action. Where a right has been acquired under a contract, a court of equity will establish it. 10 R. C. L. 81, p. 333. The order denying the motion of defendant Ellis for a new trial should be reversed.
For the defendants in error, there were briefs by G. H. Paul of Riverton, H. B. Durham of Casper, and F. L. Pierce of Omaha, Nebraska, and F. B. Sheldon, Jr. of Riverton, and oral arguments by Messrs. Durham and Pierce.
Where an option in a lease fixes no time within which the option is to be exercised, such option must be taken up before expiration of the lease term. Anderson v. Anderson, 251 Ill. 415, 96 N.E. 265; Willenbrock v. Latulippe (Wash.) 215 P. 330; Thompson v. Coe (Conn.) 115 A. 219. Where an offer to sell does not itself fix the time within which it must be accepted, it lapses by the expiration of a reasonable time. Box Co. v. Biscuit Co. (Calif.) 103 P. 938; Mossie v. Cyrus (Ore.) 119 P. 485; New England Box Co. v. Prentiss & Wilder (N. H.) 72 A. 826; Gravel Co. v. Corbin (Wash.) 142 P. 1163; Stone v. Harmon, 31 Minn. 512, 19 N.W. 88. An option to purchase lands does not, in the absence of an express stipulation to that effect, entitle the optionee to possession, until, at least, the option has been exercised according to its terms. Frank v. Stratford-Handcock (Wyo.) 77 P. 134. An option is not an actual or existing contract, but merely a right reserved in a subsisting agreement. It is a continuing offer to sell at the election of the optionee within a time specified. Frank v. Stratford-Handcock, supra. A contract of sale arises from an option only when the option is exercised according to its terms. Frank v. Stratford-Handcock, 13 Wyo. 37; Canton Mills v. Southwest Overall Co. (C. C. A. 8) 8 F.2d 807; Minneapolis & St. Louis Ry. Co. v. Columbus Rolling Mill Co., 119 U.S. 149. Any words or acts of the offeree indicating that he declines the offer or which justify the offerer in inferring that the offeree intends not to accept the offer, amounts to a rejection. 1 Williston on Contracts (Rev. Ed.) Sec. 51; Sypherd v. Myers (N. J.) 79 A. 340; State v. Wisner State Bank (Nebr.) 250 N.W. 89. Propositions, negotiations, correspondence, and conversations, do not make a contract unless the minds of the parties meet upon the same stipulations and they consent to comply with them. Travis v. Nederland Life Ins. Co. (C. C. A. 8), 104 F. 486. A corporation is not deemed to have executed a contract because its name is put down upon the paper in typewriting. Tabas v. Emergency Fleet Corp. (D. C.) 9 F.2d 648; U. S. Shipping Board Emergency Fleet Corp. v. Tabas (C. C. A. 3) 22 F.2d 398. The authority of an agent to bind a principal on a contract for the sale of real estate must under the statute of frauds be in writing. Marshall v. Rugg, 6 Wyo. 270, 44 P. 700; § 97-101, 104, 128, R. S. 1931. A party may be estopped to insist upon a claim which is inconsistent with an admission which he has previously made in reliance upon which the other party has changed his position. 19 Am. Jur. 681, Sec. 63; 21 C. J. 1241, Sec. 247. The rule that a written contract cannot be varied by parol extends to the legal import or intendment of the contract, as well as to the terms or conditions in which it is written. Union Selling Co. v. Jones (C. C. A. 8) 128 F. 672. A court of equity has no power to make a new contract for the parties and to confer upon one of them rights which by the terms of the contract did not exist. Standiford v. Thompson (C. C. A. 4) 135 F. 991. Exercise of an option, after expiration of the time limited therein, will not be permitted in equity for the reason that time is the essence of an option as distinguished from a contract for actual sale of lands. Waterman v. Banks, 144 U.S. 394; Wightman v. Hall (Cal.) 217 P. 580; Davis v. Brigham (Ore.) 107 P. 961; Ry. Co. v. Ballinger (Wash.) 97 P. 739; Frey v. Camp (Iowa) 107 N.W. 1106; Pollock v. Brookover (W. Va.) 55 S.E. 705; Coal Corp. v. Cryder (Ill.) 197 N.E. 750; Lisman v. Ry. Co., 161 F. 472. A communication from a principal to his agent which is merely an instruction to the agent, and which the principal gives the agent no authority to deliver to another, has no force as evidence of a contract in favor of a third party. Shinn v. Smiley (N. J. Eq.) 122 A. 531; Halsell v. Renfrow (Okla.) 78 P. 118; Steel v. Fife, 48 Iowa 99; Bridge Supply & Lumber Co. v. Owen Conway & Son (Iowa) 98 N.W. 1024. The Wyoming Statute of Frauds is set forth at Section 47-101, R. S. 1931. Mead v. Leo Sheep Co., 32 Wyo. 313; 232 P. 511; Pottery Co. v. Onken Bros. Co., 26 Wyo. 287, 183 P. 747. Possession to avoid the statute of frauds must be under and by virtue of the purported contract and must be referrable to it. Frank v. Stratford-Handcock, 13 Wyo. 37, 77 P. 134; Mecum v. Metz, 30 Wyo. 495, 222 P. 574. Part payment of consideration will not avoid the statute of frauds. Mecum v. Metz, supra; Newman v. Newman (Ohio) 133 N.E. 70; Jones v. Jones (Mo.) 63 S.W.2d 146. Admissions contained in pleadings of a party in a former action do not conclusively establish the facts alleged therein and are open to explanation or rebuttal. Admissions and Declarations, 1 R. C. L. 500, Sec. 40; Valley Planting Co. v. Wise (Ark.) 123 S.W. 768. The general rule is that statements of facts in a party's pleading may be used against him as evidence of those facts, provided he had knowledge of its contents and the allegations therein were inserted by his direction. Admissions and Declarations, 1 R. C. L. 495, Sec. 34; Ann. Cases 1913A, 134, note. The fact that allegations were made by the attorney drawing the pleading on a misunderstanding of the facts and not by authority of the party, may be shown. Houston R. R. Co. v. DeWalt (Tex.) 70 S.W. 531. Allegations in a pleading not of facts but mere conclusions of the pleader, are not deemed admitted. Burlington R. R. Co. v. Dey (Iowa) 48 N.W. 98; Herndon v. Salt Lake City (Utah) 95 P. 646.
This is an action in ejectment brought in June, 1937, by the Federal Land Bank of Omaha, Nebraska, as plaintiff, against Lillian G. Ellis (generally referred to herein as Mrs. Ellis), as defendant, to recover possession of about 3469.81 acres of land situated in Fremont County, Wyoming. One Lee Simonson and the Yellowstone Sheep Company were subsequently made parties to the action at the request of Mrs. Ellis. Upon issues joined, the court entered judgment in favor of the plaintiff and the Yellowstone Sheep Company. From this judgment Mrs. Ellis has appealed. The plaintiff will ordinarily herein be referred to as the bank, or as plaintiff bank.
The plaintiff bank obtained a mortgage on the premises in controversy in 1923, foreclosed this mortgage in 1934, and bought it at a foreclosure sale in January, 1935. It was entitled to a deed in the fall of 1935, but delayed obtaining it, by agreement of the parties, until some time in 1936. The defendant Mrs. Ellis was the owner of the equity of redemption. In 1935 and the early part of 1936, she attempted to make an arrangement with the plaintiff bank to obtain a new loan, so that she could retain the land. It seems however, that she was unable to do so, and thereafter entered into negotiations for a lease on the land, and at the same time endeavored to obtain from the plaintiff bank an option to purchase the land. These negotiations were conducted on April 17, 1936, at Lander, Wyoming, by Ivan E. Packard on behalf of the bank, and by Mrs. Ellis and Mr. Maxwell, her attorney, on her behalf. A proposed contract was drawn up by the parties, wherein Mrs. Ellis was given a lease to the land till March 1st, 1937, at a rental of $ 1100. An option to purchase was appended...
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