Wilcox v. Cline

• Citation: 70 Mich. 517,38 N.W. 555
• Court: Michigan Supreme Court
• Decision Date: 08 June 1888
• Parties: WILCOX v. CLINE.

38 N.W. 555

70 Mich. 517

WILCOX v. CLINE.

Supreme Court of Michigan

June 8, 1888

Appeal from circuit court, Wayne county, in chancery.

Action by Alfred F. Wilcox against George T. Cline to compel the specific performance of an accepted offer to sell lands of the latter. Judgment for plaintiff. Defendant appeals.

MORSE J.

The bill in this cause is filed for the specific performance of an alleged contract to sell land. The premises in controversy are described as lots 1, 2, 3, 4, 5, 6, 7, and 8 of outlot No. 193, Rivard farm, Detroit, Wayne county, Mich. The contract sought to be enforced reads as follows: "I will sell lots 1, 2, 3, 4, 5, 6, 7, and 8 of outlot 193, Rivard farm, Detroit, Wayne Co., Mich., for $17,500, payable $8,000 cash, bal. $2,500 per annum, with interest annually from April 1, 1887, at 5 per cent. Upon payment of pro rata amount, lots to be released from mortgage for purchase money. Payments may be made of pro rata amounts at any time, on any lot or lots of subdivision, with interest at 5 per cent. to time of payment or any of above payments may be made at any time before due. Payments to be made to David Preston, banker, and releases to be had through him upon such payments. This option is given to Alfred F. Wilcox until April 1, 1887, and, if not then accepted, to be void. GEORGE T. CLINE. Bellefontaine Ohio, February 1, 1887. It is hereby agreed by both parties to the above that the above agreement shall not be recorded." The complainant claims that after the making of this contract or option, which was delivered to him at Bellefontaine, Ohio, he returned to Detroit, where he resided; and that, on the 21st say of March following, he wrote to defendant, addressing him at Chillicothe, Ohio, the following letter accepting said proposal: "I have decided to, and do hereby, accept your written proposal of February 1, 1887, to sell me lots 1, 2, 3, 4, 5, 6, 7, and 8 of outlot 193, Rivard farm, in this city, and am prepared to comply with the terms of said proposal. Will you forward deed to Mr. Preston, or some one here for delivery, on receipt of the down payment and mortgage specified in your proposal, or how will you arrange for the transfer? Trusting there will be no delay in concluding the matter, I await your early reply. Very truly, A. F. WILCOX." He also testifies that on the 31st day of March, 1887, he wrote his acceptance upon said contracts as follows: "I accept the above proposition this 31st day of March, 1887. ALFRED F. WILCOX." Complainant also gave evidence that he sent this acceptance by letter to Chillicothe on account of a postal-card received from defendant before that time, and dated at Parkersburg Md., March 18, 1887, directing him to write him at Chillicothe. On the 21st of March, complainant also mailed two other unconditional acceptances, one to Cincinnati, Ohio, and one to Frederick, Md.

Hearing nothing from defendant, complainant on the 2d of April, 1887 wrote him at Frederick city, Md., the place of his residence, expressing surprise that defendant had not forwarded his deed for delivery, and asking him to complete the transfer without further delay. Receiving no reply, he sent a telegram. April 9th the defendant wrote postal-card to complainant: "Please forward copy of proposition, if you have one, as promised; then I will communicate with you. Yours, truly, GEO. T. CLINE." Complainant then went to Frederick, and on April 16, 1887, saw the defendant, and tendered to him $8,000 in currency, and a mortgage for the payment of the balance as stipulated in the proposal or option, and demanded a deed of the premises. The defendant refused to take the money or to execute the deed. Complainant claims that when he saw Cline at this time he admitted that he received two of the acceptances mailed by complainant on the 21st of March,-the one addressed to Chillicothe, and the one directed to Frederick city. The one mailed to Cincinnati was returned through the post-office to complainant at Detroit. According to complainant's testimony, Cline admitted receiving these letters about the 27th or 28th of March at Chillicothe; the one addressed to Frederick being forwarded from there by defendant's nephew. Complainant, therefore, claims that defendant received his acceptance in time, that he has performed by his tender, and that he is entitled to a deed from the defendant in accordance with the contract. The defendant claims that he understood the option when he signed it to name $19,500 as the purchase price of the lots instead of $17,500; that the complainant had been trying to get the land for some time, claiming to act as the agent of one Capt. Wallace, who held a large number of tax titles upon the property; that defendant always asked $20,000 for the premises; that at the meeting at Bellefontaine he offered to take $19,500, allowing Wilcox $500 for his trouble or commission in effecting the sale. Complainant then picked up a paper, and hastily wrote out a proposal, reading it to defendant as $19,500 instead of $17,500, as it appeared to be written when he saw it at Frederick. Defendant says he did not have time to read it himself, as complainant was in a great hurry to reach the train. Complainant promised to send him a copy, but did not do so. Defendant never saw the proposal again until they met at Frederick, in April, and then he discovered, and was aware for the first time, that the purchase price was stated therein at $17,500. He also alleges that the proposal as written is false...