Wardell v. Williams
| Decision Date | 27 June 1886 |
| Court | Michigan Supreme Court |
| Parties | WARDELL v. WILLIAMS. |
Error to superior court of Detroit.
James T. Keena, for plaintiff.
Moore & Canfield, for defendant and appellant.
This suit was commenced to recover damages for breach of an alleged contract for the conveyance of certain real estate by defendant to plaintiff. The defendant was the owner of a parcel of land containing about 116 acres, situated a short distance from the city of Detroit. He had platted the land into lots and streets, but no streets had been actually opened or lots sold, but the whole thereof was occupied as a farm. He had been desirous of selling this property, and had, before the date hereinafter mentioned placed it in the hands of a real-estate agent for sale, but without success. On the sixth day of September, 1884, he signed and delivered to Orrin Wardell, of Detroit, a paper of which the following is a copy:
[Signed] "JOHN C. WILLIAMS."
Eight or ten days later he furnished to Wardell an abstract of title, which Wardell placed in the hands of his attorney, who advised him that the title was good, but that there was a mortgage upon the premises, or a large portion thereof, of $8,000, payable to the Connecticut Mutual Life Insurance Company. A few days later, and before the 20 days had elapsed, plaintiff verbally told the defendant that he would accept the proposition, and requested him to prepare his deed. The defendant then said that William A. Moore, who was the agent of the insurance company, was out of the city, and would not return until the next Tuesday, and he could not get the mortgage discharged until he returned. The time referred to would be beyond the 20 days named in the proposal. Plaintiff asked defendant if he was aware that the 20 days would expire before the Tuesday referred to, and defendant said that would make no difference, that he would carry out the contract after 60 days even. It is conceded that the plaintiff made no tender of the cash payment, or any deed or mortgage executed or to be executed. Before the Tuesday named arrived, and after the 20 days had expired, the defendant sold the land to another party.
Three questions are presented: (1) Was there a valid contract between the parties? (2) Was the proper rule of damages given to the jury? (3) Does the special finding of the jury support the general verdict?
The validity of the contract is assailed upon several grounds, the principal of which is that it is void by reason of the statute of frauds, which enacts that every contract for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the sale is to be made, or by some person thereunto by him lawfully authorized by writing. How.St. � 6181. If it be conceded that the offer was accepted verbally within the 20 days, the question arises whether such offer and acceptance constituted a completed contract between the parties, or whether it was one step in the negotiations for sale. The offer, upon its face, looks to future action and negotiation between the parties to determine and agree upon the valuation to be placed upon the lots; which were to be released as their value so agreed upon should be paid upon the mortgage. Was this part of the offer an essential part of the terms and condition of sale and payment? The offer states the terms to be $12,000 cash, and the balance of $27,000 to be secured by a mortgage on the farm, payable on or before four years from the date of the mortgage. The manner in which it could be paid before four years was in sums of $1,000 or more, at any time during the four years, and the valuation of each lot was to be agreed upon and placed upon the plat, and the mortgagee was to release lots of equal value to the amount paid. It is said that these terms were for the benefit of the purchaser, and he might waive stipulations which were for his benefit. It is probably true that the stipulation for a valuation and release was for the benefit of the purchaser, and it is equally probable that it was inserted as a substantial part of the contract at his request. The memorandum is not the contract between the parties, but the written evidence of it required by the statute, and it is quite clear that the contract of sale and purchase embraced as an essential feature the stipulation that a valuation should be placed upon the lots by future agreement before the contract was completed, and without which it is fair to presume the purchase would not have been made by Mr. Wardell. Had Mr. Williams withdrawn that portion of the offer before the expiration of the 20 days, is it likely that Mr. Wardell would have accepted it as thus modified? Or had Mr. Wardell within the 20 days said to Mr. Williams: "I will accept all of your offer except that portion which relates to the agreement to the valuation of the lots, and the release thereof on payment of an amount of equal value," would such acceptance have bound Mr. Williams? Clearly not, for the reason that the offer must be accepted in the terms as made, without modification. Routledge v. Grant, 4 Bing. 653; Hyde v. Wrench, 3 Beav. 334: Thornbury v. Bevill, 1 Younge & C.Ch. 554; Kennedy v. Lee, 3 Mer. 441; Duke v. Andrews, 2 Exch. 290; Hazzard v. New England, etc., Ins. Co., 1 Sumn. 218; Carr v. Duval, 14 Pet. 77.
Granting that plaintiff might have waived that feature of the proposition, still there is no evidence that he did waive it. On the contrary, he claims to have accepted the proposition as expressed in the writing. This being so, there were terms which the parties have never agreed upon, and upon which their minds have never met, so as to make a completed contract, and before it was concluded the defendant withdrew altogether, and refused to complete it. Did he not have a right to do so? Has not a party a right, before negotiations are concluded, where no consideration has passed, no rights intervened, and the conditions of the parties have not changed, to refuse to go further, although the other party is ready, willing, and anxious to consummate the agreement? Honeyman v. Marrayat, 21 Beav. 14; Chinnock v. Marchioness of Ely, 4 De Gex, J. & S. 647; Martin v. Mitchell, 2 Jac. & W. 428; Lucas v. James, 7 Hare. 410.
The memorandum shows upon its face that the minds of the parties had not met, and that it was not evidence of a completed agreement; but stated terms which if accepted would be the foundation of further treaty between the parties with reference to essential particulars, which, when agreed upon, would form part of the contract of sale and purchase. Suppose the parties had proceeded with their negotiations, and it turned out that they were unable to agree upon the valuations to be placed upon the lots, would not the whole matter have fallen through? Could either have maintained an action against the other for non-performance, or compelled a performance specifically?
Aside from these considerations, there is another which has been suggested as having an important bearing upon the plaintiff's right to recover. In order to make the offer binding as a contract by acceptance, was it not necessary for the plaintiff to do something more within the 20 days than merely to say, "I accept your offer," or, "I am ready to accept your offer?" Assuming the acts of performance to be simultaneous, was it not necessary for the plaintiff to show either that he made the tender of the $12,000 which he was required to pay down, or that it was waived? It is conceded that he made no tender or show of the money, and there is nothing in the testimony which tends to show that a tender was waived. The conveyance of the property was not made by the defendant to another purchaser until after the expiration of the 20 days. What was said in the interview with reference to Mr. Moore's absence from town, and obtaining a discharge of the mortgage, was said with reference to what Mr. Williams wished to do, and nothing was said about performance, or excusing performance, on the part of Mr. Wardell. In most, if not all, of the cases to which our attention has been called, the party making a verbal acceptance has accompanied the words with a tender of the purchase money. In Chapman v. Morgan, 55 Mich. 125, S.C. 20 N.W. 820, it was said: And in Hawley v. Jelly, 25 Mich. 94, it was pretty plainly intimated that we were not prepared to hold that the mere acceptance of an offer made without consideration could amount to a land contract.
The testimony...
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