Phelps v. Good

• Decision Date: 04 June 1908
• Citation: 15 Idaho 76,96 P. 216
• Parties: M. L. PHELPS, Respondent, v. J. R. GOOD et al., Appellants
• Court: Idaho Supreme Court

96 P. 216

15 Idaho 76

M. L. PHELPS, Respondent, v. J. R. GOOD et al., Appellants

Supreme Court of Idaho

June 4, 1908

OPTION TO PURCHASE TOWN LOT-NEGOTIATIONS-MISUNDERSTANDING-CONTRACT.

1. In order to constitute a contract, there must be a common understanding between both parties. Their minds must meet as to all its terms, and if any portion of the proposed terms is unsettled and unprovided for, there is no contract.

2. An acceptance of an offer to be effectual must be identical with the offer and unconditional, and must not modify or introduce any new terms into the offer.

3. Held, that the evidence is not sufficient to show that a contract was entered into.

(Syllabus by the court.)

APPEAL from the District Court of Third Judicial District for Ada County. Hon. Fremont Wood, Judge.

Action to recover damages for failure to comply with an alleged contract for the sale of a town lot. Judgment for the plaintiff. Reversed.

Reversed and remanded. Costs of this appeal awarded to the appellants.

Perky &amp Blaine, and John F. MacLane, for Appellants.

In order to constitute a contract, there must be a distinct understanding common to both parties; the minds of the parties must meet as to all its terms, and if any portion of the proposed terms is unsettled and unprovided for, there is no contract. (9 Cyc. 245.) The offerer may annex to his offer any conditions which he sees fit, and the offeree must comply therewith. (9 Cyc. 252.) One of the conditions frequently imposed is as to the time of acceptance. (9 Cyc. 265; Maclay v. Harvey, 90 Ill. 525, 32 Am. Rep. 35.) An acceptance of an offer to be effectual must be identical with the offer and unconditional, and must not modify or introduce any new terms into the offer. (1 Page on Contracts, 74-78 secs. 45, 46; 9 Cyc. 267.) An acceptance which varies from the terms of the offer is a rejection of the offer and a counter-proposition which must in turn be accepted by the offerer in order to constitute a binding contract. (1 Page on Contracts, 75, sec. 46; 9 Cyc. 290.) After an offer has been rejected by a counter-proposal, it cannot be later accepted without a renewed consent of the offerer. (9 Cyc. 290, and cases cited; Egger v. Nesbit, 122 Mo. 667, 43 Am. St. Rep. 596, 27 S.W. 385.) After rejection by counter-proposition, the offeree cannot fall back on and accept the original proposition. (1 Parsons on Contracts, 7th ed., star p. 477; Egger v. Nesbit, supra; Wilkins Mfg. Co. v. Loud, 94 Mich. 158, 53 N.W. 1045.)

An acceptance which is not the exact thing offered, or which is accompanied by any condition or reservation, however slight, constitutes no contract. (Bishop on Contracts. secs. 321-323; see, also, Carr v. Duvall, 14 Pet. 77, 10 L.Ed. 361.)

Hawley, Puckett & Hawley, and B. P. Bradford, for Respondents.

Taking together the correspondence referring to this deal, there was a binding offer and acceptance. (23 Cent. Dig., "Frauds, Statute of," par. 262; Townsend v. Kennedy, 6 S.D. 47, 60 N.W. 164; Hunt v. Capital State Bank, 12 Idaho 588, 87 P. 1129.) "When several writings constitute one contract, such writings must be construed together." (Beckwith v. Talbot, 95 U.S. 289, 24 L.Ed. 496; Ryan v. United States, 136 U.S. 68, 10 S.Ct. 913, 34 L.Ed. 447.) Respondent has a right to insist that the court place itself in the situation of the parties themselves. (Burke v. Wells, Fargo & Co., 7 Idaho 42, 60 P. 87; Higginson v. Manson, 126 Cal. 467, 77 Am. St. Rep. 192, 58 P. 907.) In considering the matter of offer and acceptance, the offers and statements made in one letter are held out until closed. (Warner v. Marshall, 166 Ind. 88, 75 N.E. 582.) A mere request for performance in a different manner than that which has been accepted will not have any effect upon the contract as accepted. (9 Cyc., p. 269; Turner v. McCormick, 56 W.Va. 161, 107 Am. St. Rep. 904, 49 S.E. 28, 67 L. R. A. 853; Ennis, Brown & Co. v. Hurst, 1 Cal.App. 752, 82 P. 1056; Kreutzer v. Lynch, 122 Wis. 474, 100 N.W. 887; Cherokee Mills v. Gate City Cotton Mills, 122 Ga. 268, 50 S.E. 82; Brown v. Cairns, 63 Kan. 693, 66 P. 1033.)

An offer made by letter is accepted when the answering letter is postpaid, addressed and delivered in the postoffice. (Anson on Contracts, pp. 27-32; 48 Cent. Dig., title "Vendor and Purchaser," secs. 18, 19-22; Tayloe v. Merchants' Fire Ins. Co., 9 How. 390, 13 L.Ed. 187; 1 Warvelle on Vendors, 134; Otis v. Payne, 86 Tenn. 663, 8 S.W. 849; 9 Cyc. 286, 295; Campbell v. Beard, 57 W.Va. 501, 50 S.E. 747; Reeves v. Breuning, 13 N.D. 157, 100 N.W. 241; Price v. Atkinson, 117 Mo.App. 52, 94 S.W. 816; Patrick v. Bowman, 149 U.S. 411, 13 S.Ct. 811, 866, 37 L.Ed. 790; 10 Ballard's Real Prop., sec. 810; Brauer v. Shaw, 168 Mass. 198, 60 Am. St. Rep. 387, 46 N.E. 617.)

SULLIVAN, J., STEWART, J. Ailshie, C. J., Stewart, J., and Sullivan, J., Concurring.

OPINION

SULLIVAN, J.

This action was commenced to recover damages for a breach of an alleged contract for the sale of a certain town lot, situated in Boise City. It is alleged in the amended complaint, which will hereafter be referred to as the complaint, that on or about the 20th day of February, 1906, plaintiff and respondents mutually agreed, in writing, that the appellants would sell to the plaintiff and that the plaintiff should purchase from the defendants, lot 5 in block 115 of the original townsite of Boise City, for the sum of $ 2,000; and that at the same time and place, the respondent paid to the appellants the sum of $ 500 as part payment of the purchase price, and further agreed to pay the remainder of the purchase price on or before March 10, 1906. Continuing, the complaint contains the usual allegations in actions of this character as to the offer of performance and tender on the plaintiff's part, and the refusal to perform by the defendants, and demands judgment for damages in the sum of $ 4,000.

The answer of the defendants denies the alleged partnership, the agreement of sale, the tender by the plaintiff, the damages laid in the complaint, and avers that the defendants, who were the owners of the lot described in the complaint, gave the plaintiff a verbal option to purchase the same, which option was without consideration and was to extend only to March 1, 1906, but was later extended, without consideration. to March 10, 1906; that plaintiff attempted to modify the terms of the option by sending to the Bank of Commerce at Boise a check for $ 1,352.50, to be paid to defendants on delivery of a warranty deed with abstract of title, thereby endeavoring to procure the land for $ 1,852.50 instead of $ 2,000, and that thereupon the defendants withdrew the option, notified the respondent of the withdrawal and returned to the respondent the $ 500 paid by him, directing the bank to return the $ 1,352.50. And for a separate defense, the answer sets up the statute of frauds.

The defendant Schooler filed a disclaimer and the cause was tried between the plaintiff, Phelps, who is respondent here, and the defendants, Good & Roberts, who are appellants here. Upon the issues thus made, the cause was tried by the court without a jury, and judgment was entered in favor of the plaintiff and respondent for the sum of $ 1,250 against the defendants, Good & Roberts. The appeal is from the judgment and order denying a new trial.

There is but very little contradiction in the material facts of the case as they appear in the record. It appears that on or about February 12, 1906, the respondent, who lived in Nebraska, was visiting Boise, and while there, entered into verbal negotiations with the appellants in regard to the purchase of said town lot. There evidently was a misunderstanding in regard to the proposition made by the appellants to the respondent for the purchase and sale of said lot. The record clearly shows that both parties understood the purchase price to be $ 2,000. No consideration was paid at the time of the negotiations, and it appears that the terms of payment were not clearly fixed. The respondent then returned to Nebraska, and on arriving there wrote to the appellants enclosing them a check for $ 500, and in his letter in which the check was enclosed, he stated that said check was "the first payment on my option on lot 5, block 115, original plat of Boise, Idaho." The letter also requested that appellants hold the cash option open until March 10th. On February 20th, the appellant, Good, wrote to the respondent, acknowledging the receipt of the check, and saying that the option might stand open until March 10th. This letter also mentioned a sewer tax which the appellants said they were selling said lot subject to. On February 23d, respondent answered said letter, disputing that the sale was subject to said sewer tax, and asserting that he was entitled to a five per cent discount for cash and a division of commission, all of the parties hereto being real estate agents, and it appears that the custom among such agents is that when one sells the other property, they divide commission with him. It appears that no answer was made to this communication because of some delay in the mails, until March 1st, and in the meantime, on February 28th, the respondent wrote two letters, one to the appellants which stated that he was sending the Bank of Commerce a check for $ 1,352.50 and giving a memorandum of the agreement as he understood it, which included items of cash discount and one-half of the commission; and the other letter was written to the Bank of Commerce enclosing a check for $ 1,352.50, instructing the bank to deliver the same to appellants on their delivering to it for the respondent, a warranty deed conveying sewer rights, water, ditches, and a clear title generally. The first mentioned letter is as follows:

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