Marti-Matter Co. v. Thomas

• Decision Date: 05 December 1921
• Docket Number: 9897.
• Citation: 202 P. 703,70 Colo. 478
• Parties: MARTI-MATTER CO. v. THOMAS et al.
• Court: Colorado Supreme Court

202 P. 703

70 Colo. 478

MARTI-MATTER CO. v. THOMAS et al.

No. 9897.

Supreme Court of Colorado

December 5, 1921

Error to District Court, Kit Carson County; Arthur Cornforth Judge.

Action by the Marti-Matter Company against Herbert J. Thomas and others. Judgment for defendants, and plaintiff brings error.

Reversed and cause remanded.

Godsman & Godsman, of Burlington, for plaintiff in error.

Louis Vogt, of Burlington, for defendant in error.

BAILEY, J.

The Marti-Matter Company brought this action for damages because of failure of defendants to carry out an alleged contract for the sale to it of four quarter sections of land. Trial was to the court and findings with decree for defendants. Plaintiff brings the record here for review.

The question is whether the letters and telegrams which passed during the negotiations, constitute a binding contract between the parties. From the record it appears that the correspondence began in December, 1917, when the company requested a price on certain tracts owned by defendants. Prices were given and negotiations and sale followed as to one quarter. This sale does not enter into the present consideration, except as it may throw light upon the probable attitude of the parties in dealing with the other land. After the deal was closed on the one quarter, correspondence began as to four other quarters which defendants offered at this time at the price of eleven dollars an acre. Following offers and counter offers between the parties, defendant H. J Thomas finally sent to the company the following telegram:

'Will you give eight thousand three hundred and twenty dollars cash for the section of land listed with you. I have received a good cash offer from another party. Wire yes or no by night letter.'

The company answered as follows:

'Will take whole section eleven per acre. Letter follows.'

The letter referred to contained directions for the conveyance of the land and stipulations as to manner and terms of payment, as follows:

'We are herewith enclose you four blank forms of Colorado deeds which you can use in making out the deeds to the sections of land just sold.

'Deed to the N.E. of 27-10-46 should run to John Koos, Adams County, Nebraska. Deed to the N.W. 26-10-46 should run to John Sanborn, Adams County. Deeds to the other two quarters should be in blank since we do not know as yet who will get these deeds. The consideration in all cases should be $1.00 and other valuable considerations. $2.00 revenue stamps should be applied to each deed.

'I am of the opinion we will pay all cash for the four quarters instead of giving back mortgage for one-fourth. It would have suited us very much better if we could have paid half cash and you carried back mortgage on half, on all except the N.E. of 27.

'If you will kindly have these deeds properly executed and send them with abstracts to First National Bank of Hastings with instructions to deliver to us upon settlement of each deed same will be taken up at once.'

In reply to this telegram and letter defendant H. J. Thomas sent a letter to this effect:

'Received your letters after an absence of two weeks. I am having patents recorded and will send you deed to S.E. 1/4 of sec. 11-10, range 46. I will have blank deeds to the N.E. 1/4 of sec. 27, N.W. 1/4 of sec. 26, N.E. 1/4 of sec. 26, and the N.W. 1/4 of sec. 25 signed soon. It will take some time to get blank deed to N.E. 1/4 of sec. 26, because the owner, my brother, is in France. As soon as I get the blank deeds I will notify you.'

Before receipt of the above letter the company sent the following letter and telegram to defendant H. H. Thomas:

'We are still anxiously awaiting your deeds and abstracts for the section we bought of you in 10-46, Kit Carson County.

'Kindly advise us when papers will be sent, if they have not already been sent to the bank.'

'Forward deed to First National Bank, Hastings, Southeast eleven, ten, forty-six,

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