69 Wis. 43 | Wis. | 1887
This action was brought to recover damages for an alleged breach of contract to convey lands to the plaintiffs which the}'' allege they had purchased from the defendants. On the trial the court ordered the plaintiffs to be nonsuited, and from the judgment in favor of the defendants the plaintiffs appealed to this court.
The only question in the case is whether the evidence introduced by the plaintiffs showed a valid contract with the defendants for the purchase of the lands described in the complaint. It is admitted that there was no formal contract in writing between the parties, but, on the part of the appellants, it is insisted that the correspondence between the parties shows an existing and binding contract
The evidence relied upon by the plaintiffs to prove the contract is, first, a letter purporting to be written and signed by the defendants, bearing date at Yannessa, Ontario, January 30, 1884. The following is a copy of the letter after the date:
“S. & J. G. Atlee, Fort Madison, Iowa — Gents: Yours of 26th to hand, asking us to name price on our lands in 23, 1 E. We do not care to dispose of it in small lots. Ye herewith enclose you a list of our lands in 23, 1 E. Will sell all or none, as we have had quite a number of applicants. We are open to sell if price suits. Will you make us an offer for the whole? If so, please state price, and terms easy. Yours respy.,
“ J. A. & H. BARTHOLOMEW.”
The list of lands referred to in this letter was produced on the trial by the plaintiffs. No further written communications were had between the parties until October 8, 1885, when the following telegram was written and sent:
“ La Obosse, October 8, 1885.
“F. A. Bartholomew: What is your lowest cash price for all the pine land?
[Signed] “ R. Eahey, Agt. for S. & J. Atlee.”
The evidence shows that this telegram was received by the defendants at Neillsville, in this state, on the same day, and was immediately answered by a telegram written by J. A. Bartholomew as follows:
“Neillsville, Wis., October 8, 1885.
“ R. Fahey: Twenty-three thousand five hundred dollars. Must know by 2:30 to-day.
[Signed]
“ J. A. BARTHOLOMEW.”
The proof shows that Fahey received the telegram of J. A. Bartholomew at La Crosse about 2 o’clock p. m. After the receipt of this telegram by Fahey at La Crosse, he communicated with the defendants by telephone, and asked further time, and there is evidence tending to show that the defendants extended the time by telephone to 4 o’clock p. m., same day. And at 3:45 p. m., same day, Fahey tele-' phoned from La Crosse to the defendants at Neillsville as follows: “ The Atlees accept your proposition, and will take, the pine land at the .price offered, twenty-three thousand five hundred dollars.”
The learned circuit judge, in deciding the case, says “that1 the testimony, taken together, does- not make a contract, and that, if everything else was proved, the plaintiffs have-failed because their alleged acceptance was not in writing but by parol, and that the contract, and the whole contract, must be in writing.”
After a careful reading of the evidence in the case, we are satisfied that, the learned circuit judge was right in holding that the evidence was not sufficient to sustain the' plaintiffs’ action. In the first place, we think there are grave doubts whether the correspondence, which it is alleged constitutes the contract between the parties, sufficiently describes the lands purchased. It is true, the evidence shows that in January, 1884, the defendants sent the plaintiffs a list of lands Owned by them in a certain township in this state, and there is a strong presumption that the further correspondence relates to the lands described in such list. But this list was sent more than eighteen months before the inquiry was made by the plaintiffs' in regard to the price at which the defendants would sell their lands. And the inquiry then was as to the price of all the pine land. The list furnished eighteen months before does not describe the lands as pine lands, and it must
We are not, however, disposed to place our decision in this case upon the want of a sufficient description of the property, about which there were negotiations. We think the plaintiffs entirely fail to show that Fahey, who accepted the offer made by the defendants, had any authority to accept such offer on their behalf when he so accepted it. It will be noticed that neither of the’ plaintiffs appeared as witnesses in their own behalf to prove the authority of Fahey, and the evidence of Fahey himself is of too vague and unsatisfactory a nature to justify a court or jury in holding that he had authority to bind his principals by a purchase of this magnitude. It. is also to be noticed that the only written communication between the plaintiffs and Fahey about this purchase veiy clearly indicates that they had given him no power to bind them by any definite agreement without first consulting with them about its terms. The written communication referred to was contained in a letter -written by the plaintiffs to Fahey probably on the 8th of October, 1885, and was not received by him until after he
Had the purchase claimed to have been made by Fahey turned out to be a bad one for the plaintiffs, we think the defendants would have failed in holding the plaintiffs to the contract made by Fahey. The rule is well established that, in order to hold the defendants to their contract, the plaintiffs must also be bound by the same contract. Dodge v. Hopkins, 14 Wis. 630, 637-641; Townsend v. Corning, 23 Wend. 435, 444. It must be remembered that this is an
action at law to recover damages for the alleged breach of contract, and it is clear that in all such cases the contract must bind both parties. Under the evidence in this case, it seems clear to us that the plaintiffs have not bound themselves to the defendants to pay them $23,500, or any other sum, as the consideration for the defendants’ promise, if they have made one, to convey certain described lands to the plaintiffs. Fahey, claiming to be the agent of the plaintiffs, has promised on their behalf to pay it; but, if he had no authority at the time he made the promise to bind the plaintiffs as their agent, they are not bound, and so the defendants are not bound. Their promise is void for want of mutuality or consideration to sustain it. If the plaintiffs were not bound by the promise of Fahey when he made it, then the contract is void as to the plaintiffs, and the subse
Ye are also of the opinion that there is another fatal objection to the recovery of the plaintiffs in this action. The evidence clearly shows that there never was any written agreement made by the defendants to convey the lands to the plaintiffs, which was accepted by them or by their supposed agent. If the telegrams set out in the case, aided by the other evidence in the case, sufficiently describe the lands to which they relate so as to satisfy the statute, then we have this case: The defendants made an offer in writing to sell the lands to the plaintiffs for a specified sum of money, and limited the time within which such offer must be accepted by the plaintiffs to a certain fixed time in the future. The evidence is conclusive that the offer was not accepted within the time fixed. If there were nothing more in the
Where the law requires a contract to be in writing in order to bind the parties, and the writing signed and produced in evidence shows that the contract signed by the party who is to be bound by it is to be completed by an acceptance of the other party within a limited time, it is incompetent to show by parol evidence that the time for its completion, by such acceptance, was extended to some other date not mentioned in the contract signed by the party to be bound. The acceptance of the party after the time fixed in the written contract, which is to bind the party signing it, does not show that the contract in writing was the contract between the parties, but an entirely different contract, and so the contract actually made by an accept-
Admitting that the proofs show a written promise signed by the defendants to sell the lands to the plaintiffs on condition that the plaintiffs accepted it within a limited time, and the plaintiffs now seek to hold the defendants liable upon a written promise to sell if accepted at another time than that stated in the writing, the contract sought to be established by the plaintiffs is clearly not in writing, and is therefore void under the statute. Had the plaintiffs accepted the offer as made within the time limited, and it was held that the lands were sufficiently described, and that the person accepting for them was authorized to do so, and they had then sought to establish by parol that the time for performing on their part had been extended by a parol agreement, a different question would be presented. Even in that case we think the weight of the authorities holds that, when the original contract must be in writing in order to bind the parties, no extension of the time of performance by parol would be admissible to vary the original contract. Abell v. Munson, 18 Mich. 306; Cook v. Bell, 18 Mich. 387, and other cases cited in respondents’ brief. Rut, as that question is not in this case, we do not deem it necessary to consider it.
"We think the learned circuit judge was right in holding that the evidence did not show any valid contract for the sale of said lands to the plaintiffs, although he was probably wrong in holding that it was necessary that the acceptance
By the Court.— The judgment of the circuit court is affirmed.