Bentz v. Eubanks, 41 Kan. 28

Bentz v. Eubanks

41 Kan. 28 | Kan. | 1889

The opinion of the court was delivered by

Horton, C. J.:

Ou the 7th of October, 1882, and for a long time prior thereto, A. W. Bentz was the owner of the southeast one-quarter of section number thirty-two, township number six, of range number sixteen, in Jackson county. Gr. T. Eubanks claimed to have entered into a contract for the purchase of the same in March, 1881; he brought this action for the purpose of having the alleged contract specifically enforced; after commencing his action, A. W. Bentz died; and thereupon an amended petition was filed, in July, 1884, making his executors, heirs and devisees defendants; we therefore may treat the action as having been actually commenced, so far as the defendants are concerned, in July, 1884; the plaintiff resided near Holton, in Jackson county; A. W. Bentz in his lifetime resided at Carlisle, Pa.; but Charles A. Corn-man, the attorney in fact of A. W. Bentz, and with whom the alleged contract was made, resided at Minneapolis, Minn.; the supposed contract was made solely by correspondence. The power of attorney from A. W. Bentz to Charles A. Corn-man is dated August 13, 1880, and authorizes Cornman to sell “ on such terms as he deems most beneficial, . . . execute deed, . . . take mortgage to secure unpaid purchase-money.”

There was preliminary correspondence from Cornman to Eubanks, October 12, 188.0, and March 22, 1881; and a letter from A. W. Bentz to Eubanks, February 26, 1881. These letters show that Bentz and Cornman were desirous of selling *35the premises described in the amended petition. The first letter, however, which we need consider, is dated March 26, 1881, containing Eubanks’s offer. He wrote to Cornman: “I will give $1,600 — ten dollars per acre — $200 down, the remainder in 3, 4, and 5 years, with 8 per cent, interest, or all in five years. Let me know if you accept my offer, and which one.” In answer, Cornman sent a postal to Eubanks, dated March 30, 1881, as follows: “I just received yours, and will answer by this postal before going to my office. Your letter offering $200 cash and balance in 4 and 5 years, at 8 per cent, interest; I accept your offer, and will write you full particulars in to-morrow morning mail; you can just tell those parties that I sold the land to you, and will send you a deed to the bank. I will also write to Mr. Bentz.” A further answer to Eubanks’s letter of March 26 was made by Cornman on March 31, 1881, in which he states, among other things: “I only wish that you could get me $300 cash, and the balance in five years at 8 per cent.; but if you cannot give that amount, I will take the $200 cash, and the balance in four years’ time at 8 per cent, as per your offer last; probably the first would suit you better. Of course I want to get as much cash as you can spare over the $200; probably I had better send the bank two sets of notes, one in four years’ time, and the others in five years’ time, just according to the amount of cash you can give over the $200.”

Again, Cornman wrote to Eubanks on April 2, 1881, and among other things said:

“When I wrote you my last letter on March 31, I didn’t understand your letter thoroughly and wrote in great haste to inform you how I would send deeds, and what arrangements I would make with the banks in case you would pay more hand money. So I have sent two sets of notes, in case you pay more hand money. You say also in your letter if I sell to Drake to make him pay the cash for the land, and that is why I want you to pay more cash. I can sell the land to other parties for more cash and the balance in one, two, three, four and five years’ time, and if you don’t accept this offer I will be compelled to sell to other parties who are bidding for the land. . . . *36We have been asking $10 per acre for the land, and it is worth that amount, as there are plenty of farmers who will buy this land at that price by leaving them pay so much yearly for five years on the balance, with $250 hand money; so you want to execute the mortgage and notes promptly and immediately, and if not, why, notify me immediately by telegraph, in a night message of not more than ten words, and I will know what 'to do. This night message will be half rate at my expense.”

Eubanks received the postal of March 30, and the letters of March 31 and April 1 and 2, all on Saturday, the 9th of April, 1881; he lived in the country; his wife was sick on Monday; Tuesday it stormed; and Wednesday, the 13th, he and his wife went to the Exchange bank at Holton to pay the money, execute the mortgage and obtain the deed to the land. On April 12, 1881, at the instance of Bentz, Cornman had wired T. P. Moore, the cashier of the bank: “ If not delivered, do not deliver Eubanks deed until further notice.” After Moore informed Eubanks that he was instructed not to deliver the deed, Eubanks wired Cornman: “ I accept offer; am ready to comply with contract.” The postal from Cornman to Eu-banks of March 30 did not inform Eubanks which offer he accepted; he said he would take $200 cash, but added: “balance in four or five years’ time at eight per cent.; ” the offer of Eubanks was $200 cash down, and the balance in three, four and five years, at 8 per cent, interest, or all in five years. The postal, with the qualifications stated, was not an acceptance of the exact terms offered. In the letter of March 31, Cornman asked for $300 cash, and the balance in five years, at 8 per cent., but stated if Eubanks would not give that amount, he would take $200 cash and the balance in four years’ time, at 8 per cent. This letter, also, was not an acceptance of the offer of Eubanks, because it stated different terms. In the letter of April 3, Cornman notified Eubanks that he could sell the land to other parties for more than $200 cash and the balance in one, two, three, four and five years’ time, annual payments; and that if he did not accept the offer, he would sell *37to the other parties bidding for the land. In that letter he also stated that he wanted $250 in hand.

An offer by one party assented to by the other will generally constitute a contract, but the assent must comprehend the whole of the proposition. It must be exactly equal to its extent and terms, and must not qualify them by any new matter; therefore a proposal to accept or an acceptance of an offer on terms varying from those proposed, amounts to a rejection of the offer. “ If in answer to a proposal to grant Black Acre, a person replies that he is ready to close the matter and will take "White Acre, there is no acceptance. Neither is there an acceptance where executory proceedings on each side are involved in the proposal, and the party professing to accept introduces a variance and formulates his adoption of the offer with conditions and qualifications which essentially alter some of the constituents or materially vary the effect.” (Eggleston v. Wagner, [S. C. Mich.] 10 N. W. Rep. 37; Burkhalter v. Jones, 32 Kas. 5; Baker v. Johnson, 37 Iowa, 188; Hamlin v. Wistar, [S. C. Minn.] 18 N. W. Rep. 145.)

ceptance;speciñe perform-enforced As we view the correspondence between the parties, they contain propositions and counter propositions; but Cornman in his professing to accept, varied the terms of acceptance from those proposed; therefore, m . . x 1 equity and good conscience, such a contract was not made as equity should adjudge to be specifically enforced.

The telegram from Eubanks to Cornman of April 13th was not sent until Bentz had wired Cornman that the land was leased for five years, and Cornman had revoked the authority given to Moore to deliver the deed, and had notified him not to deliver until further notice. Before this telegram was sent, Moore had also notified Eubanks that he was instructed not to deliver the deed. The acceptance of Cornman’s offer by wire, therefore, was not made until after it had been withdrawn.

Again, although Eubanks received the letter of Cornman dated April 2 on April 9, and although he was specially re*38quested to answer the letter by a night message at the expense of Cornman, he did not answer the letter by wire or by writing until the 13th, and not on that day until he had been notified that the bank could not deliver the deed; therefore he did not comply with the terms of the request in the letter of April 2.

There are many other matters referred to and discussed in the briefs, but it is unnecessary to comment upon them.

The judgment of the district court will be reversed, and the cause remanded for further proceedings.

All the Justices concurring.