Hunt v. The Capital State Bank

• Decision Date: 04 September 1906
• Citation: 87 P. 1129,12 Idaho 588
• Parties: FRANK W. HUNT, Appellant, v. THE CAPITAL STATE BANK (a Corporation), Respondent. S. C. GODLOVE and S. A. HINDMAN, Interveners
• Court: Idaho Supreme Court

87 P. 1129

12 Idaho 588

FRANK W. HUNT, Appellant, v. THE CAPITAL STATE BANK (a Corporation), Respondent.

S. C. GODLOVE and S. A. HINDMAN, Interveners

Supreme Court of Idaho

September 4, 1906

ESCROW AGREEMENT FOR THE PURCHASE OF A MINING CLAIM-PAYMENT OF PURCHASE PRICE-EXPENSE OF PROCURING PATENT.

1. Where H. enters into an agreement with H. and G., whereby it is agreed that H. will pay $7,100 for a certain mining claim and pays in cash $100 thereof, and agrees that the balance shall be due February 3, 1905, and that H will pay the expense for procuring a patent to said mining claim, and that time is of the essence of the contract, and that thereafter, on February 3, 1905, H. deposited the $7,100 with the bank, as provided by the escrow agreement, with instructions to hold the same until the receiver's receipt for the patent of the mining claim has been issued and thereafter the receiver's receipt is procured and filed with said bank by H. and G. Held, that the bank was justified in paying the money over to H. and G. after said receipt was so procured.

2. Where several writings constitute one contract, such writings must be construed together.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. George H. Stewart, Judge.

Action to recover money paid on an escrow agreement. Judgment for the respondents. Affirmed.

Judgment affirmed, with costs in favor of the respondents.

A. A. Fraser, for Appellant.

A proposal to accept, or an acceptance based upon terms varying from those offered, is a rejection of the offer. (Bank v. Hall, 101 U.S. 51, 25 L.Ed. 822; Tilley v. County of Cook, 103 U.S. 161, 26 L.Ed. 374.)

There must be strict compliance with the terms of the option in order to perfect the rights of the one holding it to enforce the contract. (Harding v. Gibbs, 125 Ill. 85, 8 Am. St. Rep. 345, 17 N.E. 60.)

The acceptance must be on the terms and within the time specified. (Weaver v. Burr, 31 W.Va. 736, 8 S.E. 743, 3 L. R. A. 94; Schields v. Horbach, 30 Neb. 536, 46 N.W. 629.)

A limitation of time for which a standing offer is to run is equivalent to the withdrawal of the offer at the end of the time named. (Longworth v. Mitchell, 26 Ohio St. 334.)

There was no acceptance of the second proposition varying the terms of the option made by the plaintiff, by Godlove and Hindman, as required by sections 6007, 6009, Revised Statutes. (Niles v. Hancock, 140 Cal. 157, 73 P. 842; Newlin v. Hoyt, 91 Minn. 409, 98 N.W. 323; Platt v. Butcher, 112 Cal. 634, 44 P. 1060.)

There was no consideration for the extension of time of the original option, and if there was an attempted extension of said option, it was void for failure of consideration, and not being in writing. (Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep. 17, 24 P. 695.)

Ira E. Barber, for Respondent.

The statute of frauds does not apply where a case has been performed in whole or in part. This court has frequently so declared. (Deeds v. Stephens, 8 Idaho 514, 69 P. 534; Barton v. Dunlap, 8 Idaho 82, 66 P. 832; Francis v. Green, 7 Idaho 668, 65 P. 362.)

A unilateral writing, in the way of an offer, in case of performance becomes bilateral when the other party proceeds with performance and cannot be withdrawn. (Los Angeles Traction Co. v. Wilshire, 135 Cal. 654, 67 P. 1086; Thurber v. Meeves, 119 Cal. 35, 50 P. 1063, 51 P. 536; Beckwith v. Talbott, 95 U.S. 289, 24 L.Ed. 496.)

If such offer contemplates or permits acceptance of acts instead of a specific acceptance by words, such form of acceptance eliminates want of mutuality. (3 Page on Contracts, 1616; Storm v. United States, 94 U.S. 76, 24 L.Ed. 42; Welch v. Whelphley, 62 Mich. 15, 4 Am. St. Rep. 810, 28 N.W. 744.)

Want of mutuality is no defense, even in action of specific performance, where the party not bound thereby has performed all the conditions of the contract and brought himself clearly within its terms. (Bigler v. Baker, 40 Neb. 325, 58 N.W. 1026, 24 L. R. A. 255. Quoted in Rank v. Garvey, 66 Neb. 767, 92 N.W. 1025, 99 N.W. 666.)

The contract was executory, and became mutual and binding the instant interveners proceeded with their efforts to procure receiver's receipt, and as an offer to purchase, could not then be withdrawn. (Bowman v. Ayers, 2 Idaho 465, 21 P. 405; McCallister v. Safely, 65 Iowa 719, 23 N.W. 139.)

The writing of February 3, 1905, deposited with the escrow holder became, upon acceptance of its conditions, merged into the contract between the parties, and the contract as thus merged and modified must be construed as a whole. (Utley v. Donaldson, 94 U.S. 29, 24 L.Ed. 54; Crane v. Kildorff, 91 Ill. 567; Brush-Swan etc. Co. v. Brush etc. Co., 41 F. 163; Halsell v. Renfrow, 14 Okla. 674, 78 P. 121: Beckwith v. Talbott, 95 U.S. 289, 24 L.Ed. 496; Ryan v. United States, 136 U.S. 68, 34 L.Ed. 447, 10 S.Ct. 913; Bibb v. Allen, 149 U.S. 481, 37 L.Ed. 819, 13 S.Ct. 950; 2 Page on Contracts, 1116.)

The time for performance of a contract under seal may be extended by a subsequent oral contract. (3 Page on Contracts, 1905 ed., 1345; McCreery v. Day, 119 N.Y. 1-7, 16 Am. St. Rep. 793, 23 N.E. 198, 6 L. R. A. 503.)

The payment of the money to the trustee to the use and benefit of the interveners was an affirmance of the escrow agreement and option, and was paid for the manifest purpose of claiming on behalf of plaintiff all the benefits of the contract, was a waiver of nonperformance on part of grantors, if any, as to patenting, and an extension of time in which to patent. (Buckeye M. & M. Co. v. Carlson, 16 Colo. App. 446, 66 P. 168; Flannery v. Rohermeyer, 46 Conn. 558, 33 Am. Rep. 36; Mchen v. Williams, 2 Daly, 367.)

In this case the plaintiff made an election to pay on the day. This amounts to waiver and creates an estoppel as against him. (3 Elliott on Evidence, 2073; Lee v. Templeton, 73 Ind. 315; Steinbach v. Relief Ins. Co. , 77 N.Y. 498, 33 Am. Rep. 655; Scholey v. Rew, 23 Wall. (U.S.) 331, 23 L.Ed. 99.)

Where there is a mutual modification of the contract, and one party concludes thereafter to stand on the letter of the contract, he must notify the other party. (Eaves v. Cherokee Iron Co., 73 Ga. 459; Walkinson v. Elsworth, 27 Conn. 209.)

Consent on the part of the interveners to allow the money to remain in the hands of the escrow holder, pending the issuance of receiver's receipt, was no waiver of their rights to it. (Colorado S. L. & M. Co. v. Ponick, 16 Colo. App. 478, 66 P. 458.)

Johnson & Johnson, for Interveners.

Performance or part performance takes a contract out of the statute of frauds. (Rev. Stats., sec. 6008; Bates v. Babcock, 95 Cal. 488, 29 Am. St. Rep. 133, 30 P. 605, 16 L. R. A. 745; Ryan v. Tomlinson, 39 Cal. 639; McCarthy v. Pope, 52 Cal. 561; Coffin v. Bradbury, 3 Idaho 778, 95 Am. St. Rep. 37, 35 P. 715; Reedy v. Smith, 42 Cal. 250.)

The objection of want of mutuality in a contract is not available where both parties act upon the contract. (Bloom v. Hazzard, 104 Cal. 312, 37 P. 1037; Bayne v. Wiggins, 139 U.S. 215, 35 L.Ed. 144, 11 S.Ct. 521; Ryan v. United States, 136 U.S. 68, 34 L.Ed. 447, 10 S.Ct. 913.)

SULLIVAN, J. Stockslager, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This action was brought by the appellant to recover from the defendant bank $ 7,000, together with interest thereon, the principal sum of which had been deposited in the said bank for the benefit and use of the interveners, upon an agreement or option for the purchase of the Buffalo quartz mining claim, situated in the Thunder Mountain mining district, Idaho county.

On the third day of November, 1904, the appellant and the interveners entered into the following agreement:

"Warrens, Idaho November 3, 1904.

In consideration of one hundred dollars, the receipt of which is hereby acknowledged, we, the undersigned, owners of the Buffalo Quartz Mining Claim, situated on Thunder Mountain, Idaho County, Idaho hereby agree to sell said claim to F. W. Hunt of Boise, Idaho for a price of seven thousand ($ 7,000.00) dollars, to be paid to our order at the Capital State Bank, at Boise, Idaho on or before the 3rd day of February, 1905, and that we will execute and deliver deeds for said property at the said bank to said F. W. Hunt, and will agree that the title to said property shall be good, and will proceed without delay to the survey and patent of said Buffalo claim, the said F. W. Hunt or assigns to pay the costs of patenting excepting the preliminary survey.

(Signed)

S. A. HINDMAN,

S. C. GODLOVE."

Thereafter, on the second day of December, 1904, a deed to said mining claim was placed in escrow with the defendant bank, to be held and to be delivered to the appellant according to the following instructions, deposited with the bank at the time of depositing said deed, to wit:

"Placed in escrow in the hands of the Capital State Bank to be delivered to F. W. Hunt, if he shall make all the payments as below specified; otherwise, to be subject to the order of S. C. Godlove and S. A. Hindman of Warrens, Idaho.

"AGREEMENT.

Consideration

$ 7,100.00

Cash paid

100.00

Due Feb. 3d, 1905

$ 7,000.00

Due Feb. 3, 1905, expense incurred in procuring patent.

"There will be no obligation on the part of S. C. Godlove and S. A. Hindman to deliver above-described deed unless payments are made as above, time being the essence of the agreement."

On the third day of February, 1905, appellant paid into said bank $ 7,000 to the credit of the interveners, and at the same time delivered to the bank the following writing, to wit:

"Agreement dated November 3, 1904, between S. C. Godlove, S. A. Hindman to F. W. Hunt. Filed at request of F. W. Hunt, February 3 1905, to accompany escrow agreement between above pa...