116 N.W. 94 | N.D. | 1908
This, is an action for damages claimed under an alleged breach of a contract to sell and convey real estate. Thg alleged contract on which the action is based is evidenced solely by the following letters which passed between the parties and are made a part of the complaint, viz: On June 6, 1906, plaintiff wrote to the defendant as follows: “A. NL Beiseker * * * A, Amber-son, Esq., Snohomish, Wash. — Dear Sir: — Do you wish to sell your store building and lot in Harvey? If so, what is the very lowest spot cash price you will take, if I buy the place within 10 days from the time I get your answer from you to this letter. I have the cash and would buy the building if you wish to sell reasonable.
It is an elementary principle in the law of contracts that an unqualified acceptance by letter in answer to an offer submitted by letter creates a binding contract in writing. It is also equally well eseablished that any counter proposition or any deviation from the terms of the offer contained in the acceptance is deemed to-be in effect a rejection, and not binding as an acceptance on the-person making the offer, and no contract is- made by such qualified acceptance alone. In other words the minds of the parties must meet as to all the terms of the offer and of the acceptance before-a valid contract is entered into. It is not enough -that there is a concurrence of minds of the price of the real estate offered to -be-sold. If the purchaser adds anything in his acceptance not contained in the offer, then there is no contract. In this case there was an- -unqualified acceptance of the offer so far as the price is concerned. After that the acceptance advances terms by the writer as to the carrying out and execution of the contract that were in no-manner contained in the offer. Among the new terms imposed by the plaintff was the one asking the defendant to send the deed to one of two banks named in the letter. The defendant was entitled' as a matter of law to have the cash price paid to him at Snohomish, Wash., where the offer was made; and without his consent he was not compelled to send the deed to any place or bank until the price was paid. If plaintiff had accepted the offer unconditionally, his right to a deed could have been made effectual only -by a tender of the price to the defendant personally; and, by-requiring defendant to send the deed elsewhere, a condition was-attached to the acceptance which the defendant was not un-der any legal obligation to comply with.
The appellant contends that there is an unqualified acceptance-contained in defendant’s letter, and that what is thereafter contained in the letter is offered as a suggestion merely for the-most convenient way -of completing the transaction. We think that
There is another condition contained in the letter of acceptance, which we think varies the terms of the offer in a material matter. The defendant is requested to assign the policy of insurance concerning which nothing was said in the offer. The policy of insurance does not follow a conveyance of the land without assignment. It is subject to cancellation before the time of its running expires, and, if canceled, the insured is usually entitled to a rebate of a portion of the premium. The policy, therefore, represented something of value to the insured, which he could not be called upon to assign as a matter of right. By requiring this to be done a condition was added to the acceptance.
Other matters contained in the acceptance are urged as presenting additional conditions, but we do not pass upon them, as they are not argued by the appellant. There was no tender of the purchase price. The respondent claims that no action for damages will lie until such tender or until tender is waived.
The appellant contends that no tender was necessary for the reason that the defendant unqualifiedly refused to comply with the offer, and that a tender is not required before commencing the
The order is affirmed.