210 N.W. 588 | Minn. | 1926
"Appleton, Minnesota,
"June 9th, 1923.
"Chas. S. Brearley, Esq.,
"Minneapolis, Minnesota.
"Dear Sir:
"I still have my house at 3537 17th Ave. South and will take $3,000 cash and this year's taxes to be paid by purchaser if I can *448 get the deal closed immediately. If you can see your way clear in taking it on yourself at the above named price I shall be pleased to hear from you by return mail.
"Yours truly,
(Signed) "E.G. Schoening."
"Minneapolis, Minnesota,
"June 12, 1923.
"Mr. E.G. Schoening,
"Appleton, Minnesota,
"Dear Sir:
"I have your letter of the 9th inst. in re the property known as 3537 17th Ave. South, being further described as lot 17 in block 3, Monroe Bros. Addition, and note that you still have the house and will take $3,000 cash, purchaser to pay the taxes for this year.
"Will you kindly send me the abstract of title on the property at once, on receipt of this letter, and if title is found good and marketable in you I will close with you on that basis. It usually takes a little time to close a sale, as you know, but there should be no unusual delay if everything is all clean.
"A waiting your prompt reply, I am,
"Yours very truly,
(Signed) "Charles S. Brearley."
In order to make a contract both parties must assent to the same identical terms. "An acceptance upon terms varying from those contained in the offer is, in legal effect, a rejection of the offer." Defendant offered to sell for $3,000 cash and the taxes if he could "get the deal closed immediately." He resided at Appleton and made the offer from Appleton. Under the offer he was entitled to have the deal closed at Appleton. Rahm v. Cummings,
The authorities cited by plaintiff to the effect that a provision in the letter of acceptance requiring a marketable title does not vary the terms of the offer nor impose a new condition for the reason that such an offer implies as a matter of law that a marketable title is to be furnished, do not go to the extent of holding that a demand for an abstract and for time to have it examined is not a variance from the terms of the offer, where the offer contains no provision for an abstract and requires the deal to be closed immediately. The fact that, if plaintiff had accepted the offer as made, he could not have been required to accept the title if unmarketable, did not give him the right to require the furnishing of an abstract where none had been promised.
We think that the rule governing such matter is so thoroughly settled in the cases cited and others which might be cited that further discussion is unnecessary. The order appealed from is reversed. *450