Leuchtenberg v. Hoeschler
| Decision Date | 08 November 1955 |
| Citation | 72 N.W.2d 758,271 Wis. 151 |
| Parties | Edwin E. LEUCHTENBERG, Appellant, v. Jake HOESCHLER d/b/a Hoeschler Realty Co., Respondent. |
| Court | Wisconsin Supreme Court |
Johns, Roraff, Pappas & Flaherty, La Crosse, for appellant.
Steele, Mau, Toepel & Klos, Bosshard & Arneson, La Crosse, for respondent.
It is the contention of counsel for plaintiff on this appeal that upon the pleadings, affidavits and adverse examinations considered by the trial court, in passing upon the motions of both parties for summary judgment, that it stands undisputed that the offer to purchase signed by the plaintiff was never accepted by the Warrens, as owners, in the form in which plaintiff signed the same, but instead plaintiff's said written offer had been subsequently altered by Evenson without his knowledge or consent. The claimed alteration consisted of striking out the figure '150' in the description of the premises appearing in the offer, and substituting the figure '120' therefor.
On this appeal we are not confronted with any issue as to whether the alteration was a material one. As this court stated in its decision in Hess v. Holt Lumber Co., 1921, 175 Wis. 451, 455, 185 N.W. 522, 523:
"The acceptance of an offer upon terms varying from those of the offer, however slight, is a rejection of the offer." (Emphasis supplied.)
It would appear that the real reason which actuated the plaintiff in refusing to proceed with the purchase of the Warren property was his failure to find a source to finance the purchase because an independent appraisal disclosed that the fair market value of the premises was $2,500 less than the purchase price stipulated in the offer signed by plaintiff. Nevertheless, defendant had no right to retain the $700 earnest money in the absence of a binding contract to purchase having been entered into by plaintiff.
The pleadings and affidavits before the court raise issues of facts on such questions as to whether the Warrens did accept the altered offer to purchase within the limited time specified in such offer and as to whether such acceptance, if made, was communicated to the plaintiff. However, it has been repeatedly held by this court that disputed questions of fact, where immaterial to the questions of law presented, do not afford a basis for denial of an application for summary judgment. Hafemann v. Korinek, 1954, 266 Wis. 450, 453, 63 N.W.2d 835; Carney-Rutter Agency v. Central Office Buildings, 1953, 263 Wis. 244, 248, 57 N.W.2d 348, and Des Jardin v. Town of Greenfield, 1952, 262 Wis. 43, 50, 53 N.W.2d 784. If there was no dispute before the learned trial court on the issue of plaintiff's offer having been altered by Evenson after plaintiff had signed the same, which alteration had not been consented to by plaintiff, then all other disputed issues of fact are immaterial on the question of whether summary judgment should have been granted in plaintiff's behalf.
The issue on this appeal, therefore, narrows down to whether the alteration made by Evenson in the description of the premises contained in the offer to purchase occurred after plaintiff signed the same without his knowledge or consent.
The plaintiff's affidavit stated unequivocally that the alteration made in the property description portion of the offer to purchase changing the depth of the lot from 'about 150 feet' to 'about 120 feet' was made after plaintiff signed the offer and without his knowledge or approval. The defendant apparently concedes the making of the alteration but contends that there is an issue of fact as to whether it took place before or after the plaintiff signed. Evenson, upon his adverse examination, testified that the figure '120' substituted for the figure '150', which had been stricken out in the property description part of the offer, looked as if it might have been written by him, but that he could not say whether or not it had been done after plaintiff had left, following his signing of the offer. Plaintiff's affidavit above referred to had already been served upon defendant's counsel prior to the time the Evenson affidavit was subscribed and sworn to. In spite of the fact that plaintiff's affidavit categorically stated that the alteration had taken place after plaintiff had signed the offer without his knowledge and consent, Evenson, in the latter's own affidavit made no denial thereof and stated no facts inconsistent therewith. The Evenson affidavit did state that plaintiff signed the offer to purchase, that Evenson left a copy of such offer with plaintiff, and that on April 1, 1953, Evenson submitted such offer to the Warrens, who executed the...
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Ash Park, LLC v. Alexander & Bishop, Ltd.
...party fails to raise an issue of fact at the summary judgment proceedings, they may not do so on appeal. See Leuchtenberg v. Hoeschler, 271 Wis. 151, 158-59, 72 N.W.2d 758 (1955); see also Roseliep v. Herro, 206 Wis. 256, 264, 239 N.W. 413 (1931). Further, the circuit court implicitly concl......
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Fricano v. Bank of Am. NA
...constitutes a rejection and a counteroffer. See Household Utils., Inc. v. Andrews Co., 71 Wis.2d 17, 28–29, 236 N.W.2d 663 (1976) ; Leuchtenberg v. Hoeschler, 271 Wis. 151, 155, 72 N.W.2d 758 (1955). Thus, no contract is formed until the counteroffer is accepted. Leuchtenberg, 271 Wis. at 1......
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Miller v. LeSea Broadcasting, Inc., 96-1273
...rule of general contract law: an acceptance to be effective must match the terms of the offer exactly. E.g., Leuchtenberg v. Hoeschler, 271 Wis. 151, 72 N.W.2d 758, 760 (1955). Once the condition precedent for the right of first refusal--namely that the seller has decided to sell on the ter......
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Erving Paper Mills v. Hudson-Sharp Machine Co.
...law that the acceptance of an offer upon terms varying from those of the offer is a rejection of the offer. See Leuchtenberg v. Hoeschler, 271 Wis. 151, 154, 72 N.W.2d 758 (1955); Hess v. Holt Lumber Company, 175 Wis. 451, 455, 185 N.W. 522 The alleged "variances" contained in defendant's l......