39 W. Va. 148 | W. Va. | 1894
This is a chancery suit of E. B. Dyer against P. E. Duffy and others in the Circuit Court of Kanawha county, by
In response to a letter from Duffy, not in the record, the nature of which we can only glean from the reply, Camden wrote the following letter:
“PARKERSBURG, W. Va., April 30th, 1888.
“P. E. Durry, Esq., Charleston, W. Va.
“Dear Sir:
“Your favor of the 17th instant received, stating that if I will give you an option for a short time on the Elk and Grassy creek lands in Webster county, you think you can sell the same for one dollar per acre. I will be glad to sell at one dollar an acre and will confirm any sale you make to that effect within a reasonable time. I will also sell you the lands at seventy five cents (75) per acre, if you conclude to take them yourself and will let me know about it soon-
“Yours, very truly,
“J. hT. Camden.”
Upon it is this indorsement, made May 8,1888: “I hereby transfer the within to E. B. Dyer.
“P. E. Durry.”
Camden afterwards sold and conveyed the land to Cur-tin.
A question which at once presents itself is: Has Dyer any right to the land such as he can enforce against Camden, irrespective of the rights of Curtin? If he has not, he can succeed against neither. The letter of Camden to Duffy presents two legal features. The one makes Duffy Camden’s agent to sell his land; the other makes a proposal to sell the land to Duffy. Let us look at it in the first aspect. When Duffy indorsed on the letter, “I assign the within to E. B. Dyer,” what did he assign ? It is vague and uncertain. He could not assign the agency — the power to sell for Camden — since an agent without power of substitution in his authority can not assign his power. Story, Ag. § 13.
But it is said that Duffy, as agent for Camden, under the
Dyer set about seeking a purchaser until, having found one, as he thought, he concluded to consummate a purchase and on October 18, 1888, deposited in bank, to Duffy’s credit, the purchase-money. His action indicates that he did not regard himself a purchaser by mere force of the assignment, as he risked no money on it.
There is another consideration repelling any idea that we can hold Dyer a purchaser on the date of the Assignment. Camden’s letter gave no credit. Dyer paid not a dollar down. He took, if Duffy did not give, nearly six months’ credit, and Duffy had no authority to make a credit sale, and such a sale would not bind Camden. One dealing with an agent under written power deals with that power before him, and Dyer did have this letter before him
Another reason against compeling Camden to specific performance of the alleged sale is, that he empowered Duffy to sell “within a reasonable time.” The assignment was in a reasonable time ; but it could not alone constitute a sale. Ko money was paid nor terms of credit provided for. If we treat this assignment as a finished sale, we must call it, as between agent and purchaser, a credit — -unauthorized by the power, not binding Camden, he being ignorant of it. I use this as a circumstance against' any theory,, that this assignment made a sale. It is the only act within a reasonable time; the act of deposit, the next act, not being
If we say that the deposit in bank was an act of payment under the sale made by the assignment, it came too late, because, as an act constituting an essential part of the sale, treating it as an election by Dyer to take the land, it was not within the reasonabe time required by the letter of Camden, and because that required a payment to Camden, not a deposit to Duffy’s credit, he having no authority to receive; and because, if it had even been deposited to Camden’s credit, it would not be good, unless with notice of the deposit he waived money-payment; and because also Camden had no notice whatever of such deposit, until he had sold the land to another — until indeed this suit was brought. But it will be said that Duffy knew of this deposit. That makes no difference. His power as agent ended months before with the supposed sale. He had no power in regard to payment of the money and of course his knowledge as to that would not biud Camden, as the doctrine that notice to an agent is notice to his principal applies only to a matter as to which he is agent. If Dyer relied upon such deposit to Duffy’s name, he should have notified Camden himself of it.
The assignment alone is thus no sale and gives Dyer no right. But, though the force of the assignment arises in the case, Ido not understand that it is claimed that it alone is a contract, but the origin of what finally by the deposit became a contract. The action of Dyer speaks his construction of this indefinite assignment. It has been -well-said by Sugden. “Tell me what you have done under a deed, and I will tell you what that deed means.” Dyer did not pay or offer a dollar at the date of the assignment. He went about seeking a purchaser, probably on specula
In his evidence he treated Camden’s letter as an offer by Camden to sell and said he accepted it, and when asked if, “at the time you made said deposit and accepted the offer, did you have any notice of a withdrawal of Camden’s offer?” thus treating the deposit as the acceptance, he says, when he made the deposit, he asked Duffy to have the deed made, again treating the deposit as his acceptance, lie says that certain obstacles existed in the way of confusion of land titles in Webster - and finding papers to give chain of title and boundaries of these lands, and that he would consider six months a reasonable time to consummate the sale. .
His evidence in the respects named, and in other respects in its drift and spirit, shows that Dyer construed the matter to this effect, namely: That by the letter Camden made a proposal to sell; that by his assignment he, Dyer, became not at once a purchaser, but entitled to become such, should he thereafter choose to do so; and that by depositing the purchase-money in bank to Duffy’s credit, with notice to Duffy of the deposit, he became a full purchaser, entitled to call for a deed. Let us then, so treat it. What aspect does it present? A proposal by Camden, through his agent, to Dyer. Camden’s proposal required a consummated sale within a reasonable time. Both clauses of his letter speak an intent not to give long time to effect a sale, but to require promptness. It was an option to purchase, a proposal — as the letter itself calls itself an “option” — and under the language of the offer, as well as the general law of contracts touching a proposal, it must be accepted, and acceptance made known, and within a reasonable time. Weaver v. Burr, 31 W. Va 736 (8 S. E. Rep. 743); Barrett v. McAllister, 33 W. Va. 738 (11 S. E. Rep. 220); Hanly v. Watterson, supra p. — (19 S. E. Rep. 536); Whart. Const. § 9; Bish. Const. § 327. A mere option to purchase vests no right until accepted, Stembridge v. Stembridge’s Adm’r, 87 Ky. 91 (7 S. W. Rep. 611); Bostwick v. Hess, 80 Ill. 138.
In case of unilateral contracts, called options, as the ob
Shall we say, that nearly six months was a reasonable time merely to make an election to accept or reject ? Surely not. The mere general statement, that titles in Webster were confused, without specification or suggestion of any defect as to this land, and that there was some delay in gettiug boundaries, offers no adequate excuse for delay-lie must accept or reject the offer sooner. Camden might want to sell himself, or to get another to sell, or to haAre theTenefit of a period when the timber lands are saleable, and not tie himself down to one proposal for so long a time that the period would pass away. It seems certain that Dyer wanted to buy only in the event he could find a purchaser, and could not sooner do so. Camden was not required to wait for this. Time will cancel and withdraw a proposal as effectually as express withdrawal with notice, if acceptance be unduly delayed. Bish. Cont. § 327; 1 Whart. Cont. §§ 9, 15.
Camden waited four months without a hint from Duffy or Dyer of the assignment of his letter to Dyer, or that Dyer had any idea of buying, and then himself sold the land to another with Duffy’s wi’itten consent spoken of below; an/d it is now proposed to enforce a proposal or option not accepted for nearly six months.
The earliest act of acceptance would be October 13, 1888, when Dyer deposited in bank the purchase-money. This was too late. The letter of option expressly limited Duffy’s aecejitance by the word “soon.” Who will say that five and a half months was soon ? Soon means promptly and, also, by it Duffy was to let Camden know of his acceptance soon. Dyer never informed Camden of this deposit, lie did not know of it until this suit was brought, nor of any acceptance by Duffy or Dyer ; and the deposit was to Duffy’s credit, not Camden’s. Under this second clause, what earthly right would Duffy have to receive the money? None, he being the purchaser. Duffy knew of the deposit; but, of course, that was no notice of acceptance to Camden; for, under this clause, Duffy could no. be agent and purchaser. And, moreover, an agent appointed by
Thus a review of the case in all its material bearings leads to the conclusion, that Dyer had no enforceable contract. Dufiy joins in an answer with Camden and Curtin denying utterly any such sale in fact or law. If any one could give a clear statement on this matter, Duffy is that one. Why did not the plaintiff' put him on the stand to attest the sale ? The burden is on the plaintiff to prove a sale and remove obscurity from this obscure transaction, and Duffy is the very man, who, as the plaintiff' says, conferred his right. Dyer says, that, when he made the deposit, he requested Duffy to have Camden make a deed, and he thinks Duffy said he had requested Camden to make a deed. Why not prove this by Duffy ? Why not prove by Duffy, if such was the fact, that Camden was informed of the assignment and of the deposit aud approved it and so waived the delay ? Camden swears that he did not know of the assignment of his letter by Duffy to. Dyer until the date of his deposition in this suit — J une 15, 1892 — -and was given no information of any negotiation between Duffy and Dyer, and none of the deposit by Dyer. Why not prove the reverse by Duffy, after Camden’s evidence called for such proof, if the contrary was true ? Dyer in October, after the deposit, sent B. W. Byrne to Camden to see about a deed. Did Byrne tell Camden of the assignment and deposit? We do not know. Byrne, the agent chosen by Dyer for this mission, is not called by him to prove those or any facts.
I have above sought to show that, tested by principles of law, Dyer never had any enforceable contract for the purchase of these lands. But suppose we treat that vague, uncertain act of assignment of Camden’s letter by Duffy to Dyer as creating a contract to sell to Dyer. Then I say, that on the merits a court of equity ought not to enforce it. Specific performance rests in the sound discretion of the court under all the circumstances. He who asks it must have done those things required of him. Say that the assignment operated as a sale, or say that it was a proposal as Dyer- himself viewed it, giving him right to buy, if he
If we regard the assignment as only a proposal giving Dyer right to purchase thereafter, it was Dyer’s duty on electing to consummate to seek Camden and offer to-pay him on delivery of a deed. He did not do so. He deposited the money to Duffy’s credit,he having no rightto receive, and this nearly six months after the date of proposal, and then did not notify Camden. He knew, too, before he made the deposit, that C. P. Dorr, who purchased the laud of Camden for Curtin, was in actual negotiation with Camden for the land, and yet never informed Camden, that he, Dyer, had the assignment from Duffy or had any negotiations with Duffy, but allowed Camden and Dorr to go on and close. His own interest, if he then regarded himself a purchaser, or as having right to become such, as also justice to Camdeu, called upon him to let Camden know of his rights and claim. But he allowed Camdeu to go on and close the sale to Dorr by a deed to Curtin binding Camden by general warranty. It looks like Dyer had yet not made up his mind to buy. Curtin paid for the laud and obtained his deed in ignorance of any claim by Dyer. Would it be right for a court of equity to compel Camden to make good his warranty, and Curtin lose his land,under such circumstances of delay, indecision, and negligence on the part of Dyer.
In determining whether it will exercise its discretion in favor of specific performance, equity must regard the conduct of the parties. Curtiu is an innocent purchaser without fault. I do not see that any imputation can be cast on Camden’s conduct in the matter. He would have received more money by accepting Dyer’s deposit than what he received from Curtin. He had right to expect that, if anything would be done under his letter to Duffy, it would be
Now, would not Camden, knowing nothing whatever of any assignment of his letter to Dyer, or any negotiations between Duffy and Dyer, conclude that Duffy contemplated no action under that letter, and that it was at an end? It does not appear that Dyer knew of the letter from Duffy to Camden. I refertoit, however, asapertinentcircumstance, tending to show that Camden’s action was in good motive, and not such as to place him under the condemnation of a court of equity when deciding whether to give or withhold relief against him. I do not at all intend to have it even inferred that any reflection of bad motive or purpose lies at Dyer’s door. All we say is that, whatever his right, he made his election too late, and was not in any respect diligent to protect his right. Courts of equity will notexercise jurisdiction in specific performance where it would impose hardship on people not censurable in conduct, and where the circumstances and condition of things have so changed as to make it work loss and hardship to them. Bowles v. Woodson, 6 Gratt. 78; Booton v. Scheffer, 21 Gratt. 474; Clay v. Deskins, 36 W. Va. 350 (15 S. E. Rep. 85).
Our conclusion is to reverse the decree, and dismiss the bill.