Leaf v. Codd

• Decision Date: 12 October 1925
• Citation: 41 Idaho 547,240 P. 593
• Parties: C. W. LEAF, Respondent, v. AMBROSE W. CODD, Defendant; HENRY KAROW and MINNIE KAROW, Appellants
• Court: Idaho Supreme Court

240 P. 593

41 Idaho 547

C. W. LEAF, Respondent, v. AMBROSE W. CODD, Defendant;

HENRY KAROW and MINNIE KAROW, Appellants

Supreme Court of Idaho

October 12, 1925

SPECIFIC PERFORMANCE OF CONTRACT FOR SALE OF REAL PROPERTY-CONTRACT BY EXCHANGE OF LETTERS-PART PAYMENT-RATIFICATION-AUTHORIZED SIGNATURE BY ANOTHER-ESTOPPEL.

1. Parties may make an enforceable contract by means of letters exchanged in the due course of mail relating to the sub- ject matter of the contract, provided they are so connected that they may be fairly said to constitute a complete transaction.

2. Where the owner of real property authorized her husband to conduct negotiations for its sale by means of correspondence of which she had knowledge, which resulted in a contract for the sale of the property and a payment on the purchase price which she received, she makes the contract her own and is bound thereby.

3. Where one is present and requests or assents to the signing of an instrument by another in her name and upon her behalf relating to the sale of real property, it is in contemplation of law a signing by her, and the authority of the person performing the manual act of signing need not be in writing.

4. Where one with actual knowledge of the facts induces another by word or conduct to believe that she acquiesces in or ratifies a transaction, and the other in reliance on such belief alters his position, such person is estopped from repudiating the transaction to the other's prejudice.

5. In a suit for specific performance of a contract to convey land the vendor must have performed and been ready and willing to perform all the terms of the contract stipulated for on his own part, in order to defeat recovery by the vendee.

APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. W. F. McNaughton, Judge.

Action for specific performance of contract for sale of real property. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent.

Ed. S. Elder, for Appellants.

Contract was ineffectual for the reason that it was never accepted in the terms of the offer; but that the acceptance proposed new and additional terms and conditions, which were never accepted or agreed to. (Maclay v. Harvey, 90 Ill. 525, 32 Am. Rep. 35; Gilbert v. Baxter, 71 Iowa 327, 32 N.W. 364; Greenawalt v. Este, 40 Kan. 418, 19 P. 803; Heiland v. Ertel, 4 Kan. App. 516, 44 P. 1005; Phelps v. Good, 15 Idaho 76, 96 P. 216; Houser v. Hobart, 22 Idaho 735, 127 P. 997, 43 L. R. A., N. S., 410; 9 Cyc. 245; DeJonge v. Hunt, 103 Mich. 94, 61 N.W. 341; Egger v. Nesbit, 122 Mo. 667, 43 Am. St. 596, 27 S.W. 385; Carr v. Duval, 14 Pet. (U.S.) 77, 10 L.Ed. 361; Bruner v. Wheaton, 46 Mo. 363.)

Contract was barred by statute of frauds. (C. S., secs. 7974, 7976; Seder v. Grand Lodge, A. O. U. W., 35 Idaho 277, 206 P. 1052; Kerr v. Finch, 25 Idaho 32, 135 P. 1165.)

Authority of agent to bind principal must be in writing. (C. S., sec. 7976; Houser v. Hobart, supra; Nason v. Lingle, 143 Cal. 363, 77 P. 71.)

Wm. D. Keeton and Ezra R. Whitla, for Respondent.

All of the correspondence should be construed together in order to make the contract and satisfy the statute of frauds. (Trevor v. Wood, 36 N.Y. 307, 93 Am. Dec. 511; Elbert v. Los Angeles Gas Co., 97 Cal. 244, 32 P. 9; Ryan v. United States, 136 U.S. 68, 10 S.Ct. 913, 34 L.Ed. 447; Lewis v. Elliott Bay Logging Co., 112 Wash. 83, 191 P. 803; Crystal Palace v. Butterfield, 15 Colo. App. 246, 61 P. 497; Bayne v. Wiggins, 139 U.S. 210, 11 S.Ct. 521, 35 L.Ed. 144; Bibb v. Allen, 149 U.S. 481, 13 S.Ct. 950, 37 L.Ed. 819; Kleinhans v. Jones, 58 F. 742, 15 C. C. A. 644.)

All of the terms made need not be in one instrument but may be in various writings accepted at various times. (Hull v. Marquette Cement Mfg. Co., 208 F. 260, 125 C. C. A. 460; Fruit Dispatch Co. v. Gilinsky, 84 Neb. 821, 122 N.W. 45; Collyer v. Davis, 72 Neb. 887, 101 N.W. 1001; Georgia R. & B. Co. v. Smith, 83 Ga. 626, 10 S.E. 235.)

Tender of deed was necessary by defendants before they could cancel contract. (Abercrombie v. Stoddard, 39 Idaho 146, 228 P. 232; 39 Cyc. 1322, 1328, 1334, 1375; Kessler v. Pruitt, 14 Idaho 175, 93 P. 965.)

Answers received in reply to letters written are presumed to be signed by addressee. (Fruit Dispatch Co. v. Gilinsky, supra; Violet v. Rose, 39 Neb. 660, 58 N.W. 216; People's Nat. Bank v. Geisthardt, 55 Neb. 232, 75 N.W. 582; Helwig v. Aulabaugh, 83 Neb. 542, 120 N.W. 162.)

Minnie Karow being present when her husband wrote letters, and as she knew he was writing them and signing her name thereto and acting for her, the contract thereby created is her contract and her name attached by him is her signature. (Eggleston v. Wagener, 46 Mich. 610, 10 N.W. 37; Bigler v. Baker, 40 Neb. 325, 58 N.W. 1026, 24 L. R. A. 255; Gardener v. Gardener, 5 Cush. (Mass.) 483, 52 Am. Dec. 740; Jansen v. McCahill, 22 Cal. 563, 83 Am. Dec. 84; Just v. Wise, 42 Mich. 573, 4 N.W. 298; Morton v. Murray, 176 Ill. 54, 51 N.E. 767, 43 L. R. A. 529; Videau v. Griffin, 21 Cal. 389; Hall v. Misenheimer, 137 N.C. 183, 107 Am. St. 474, 49 S.E. 104; Fitzpatrick v. Engard, 175 Pa. 393, 34 A. 803; Clough v. Clough, 173 Me. 487, 40 Am. Rep. 386; Finegan v. Lucy, 157 Mass. 439, 32 N.E. 656; Ford v. Ford, 27 App. D. C. 401, 7 Ann. Cas. 245, 6 L. R. A., N. S., 442; Middlesborough Waterworks Co. v. Neal, 105 Ky. 586, 49 S.W. 428; Conlan v. Grace, 36 Minn. 276, 30 N.W. 880; Schmitt v. Schmitt, 31 Minn. 106, 16 N.W. 543; Wyatt v. Walton Guano Co., 114 Ga. 375, 40 S.E. 237; Town of Fulton v. Norteman, 60 W.Va. 562, 55 S.E. 662; 13 C. J. 307, par. 130.)

Defendant is estopped to deny her signature. (21 C. J. 1113, 1145, 1151; Kuriger v. Joest, 22 Ind.App. 633, 52 N.E. 764, 54 N.E. 414; Hayden v. Zerbst, 49 Wash. 103, 94 P. 909; Helwig v. Fogelsong, 166 Iowa 715, 148 N.W. 990; Green v. Hulse, 57 Colo. 238, 142 P. 416; Lane v. Pacific & I. N. Ry. Co., 8 Idaho 230, 67 P. 656.)

JOHNSON, District Judge. William A. Lee, C. J., and Wm. E. Lee, Budge and Givens, JJ., concur. Taylor, J., did not sit at the hearing and took no part in the decision in this case.

OPINION

JOHNSON, District Judge.

This is an action by respondent, C. W. Leaf, for specific performance of a contract for the sale of real property situate in Benewah county against Ambrose W. Codd, Henry Karow and Minnie Karow.

The court found that Codd had no interest in the case and entered a decree requiring Minnie Karow to execute and deliver to respondent a warranty deed conveying the said property. From this decree and judgment Minnie Karow and Henry Karow appeal to this court.

The complaint in substance alleges that Henry Karow and Minnie Karow are husband and wife; that the plaintiff entered into a written contract with Minnie Karow for the purchase of the property described for the sum of $ 4,000 and that she was paid $ 200 thereon, and that the balance was to be paid when the deed was delivered; that the plaintiff has tendered the balance and demanded a deed. The defendants Karow jointly answered and each verified the answer and in it they admit that they are husband and wife and that the property is the separate property of Minnie Karow. She denies that she entered into a written agreement or contract with the plaintiff but "she does admit the payment to her by the plaintiff of the sum of $ 200, and she also admits that the plaintiff offered to pay the balance of $ 3,800 upon the delivery to a bank of said deed by her. Further answering, the defendant Minnie Karow says that she had no correspondence or communications at all with the plaintiff and that her husband, the defendant Henry Karow, without any authority from her answered all correspondence of the plaintiff and that he, the said Henry Karow, entered into the contract alleged by the plaintiff herein, and that when the plaintiff sent his check in the sum of $ 200 she was induced to indorse the check."

The contract sued on consists of letters exchanged between the respondent C. W. Leaf and letters in reply signed in the name of Minnie Karow but which the appellant Minnie Karow contends were written by her husband, Henry Karow, without her consent and approval and without knowledge on her part as to the contents of said letters.

The record discloses that the complaint was filed on April 5 1923, and the answer states: "That on or about the 5th day of July, 1923, she tendered back to the plaintiff his payment of the sum of two hundred dollars." Minnie Karow was called by the plaintiff for cross-examination under the statute, and she testified that the first time she offered the plaintiff back the $ 200 was in April, 1924. The evidence shows the date of the first letter written by the respondent to Minnie Karow to be January 11, 1923. The answer to this letter is dated January 30, 1923, in which the price asked by Minnie Karow is stated as $ 5,000. On February 3, 1923, respondent offered to pay $ 3,500 and on March 3, 1923, received a reply offering to sell for $ 4,000 net. On March 8th, the respondent sent his check for $ 200 to Mrs. Karow, which she indorsed and the same was paid. The letter accompanying the check stated that, "We are going to accept your offer . . . . and are inclosing two hundred dollars to apply on purchase price. Purchase price to be four thousand dollars. We are inclosing blank deed and you will have someone familiar with making out deeds to fill this in in accordance with your patent. If married include your husband's name and have him sign. If not, have it stated in the deed as to your title and be sure and sign the deed as your name appears on the patent. You may send the deed to the Lumberman's State Bank at St. Maries for collection with the patent. The deed is to be made out to C. W. Leaf...