185 P.2d 1016 | Colo. | 1947
DEFENDANT in error, who was the plaintiff in the trial court, brought suit against defendant, plaintiff in error here, to clear title to her land, and sought damages totaling $7,000 for slander of title. Subsequently plaintiff withdrew her request for damages, and the court entered summary judgment in her favor clearing her title of any interest or claim which defendant might have in her land. Defendant, who filed a cross complaint asking for specific performance of a contract and then unsuccessfully sought favorable summary judgment, now comes here by writ of error.
Although arising from a different cause of action, this case is somewhat similar to that of Williams, Admx. v.Wagers,
In the instant case, however, unlike the earlier one, the parties had not entered into a formal purchase and sale agreement, and all the facts are undisputed. They consist of the following correspondence, which began when the real-estate agent in Denver wrote to the landowner concerning land the latter owned in Cheyenne county, Colorado:
"April 1, 1946 "Clara Gehrke Alexandria, Minnesota.
"Dear Madam:
"W 1/2 30-13-50 — Cheyenne County
"I have a client interested in the purchase of the above *225 described land for grazing purposes. I have sold him other grass land adjoining yours and he could use yours for additional pasture.
"Please advise by return mail the best cash price you would consider. We can close the deal at once if the price is satisfactory. Stamped envelope is enclosed for your reply.
"Yours very truly, "Max Van Hall."
The landowner thereupon replied:
"Alexandria, Minn. April 8 — 1946 "Max Van Hall Denver, Colo.
"Dear Sir:
"Your letter of April 1st is at hand. In regards to the W1/2 30-13-50 this land is for sale for $2,000 cash. With half of all oil and mineral rights reserved.
"Sincerely yours, "Clara Gehrke R. 1 Box 82.
"P.S. Hoping to hear of you soon. Then I will not lease it till I hear of your. Thank you."
Under date of April 13, 1946, the real-estate agent wrote the following letter:
"Clara Gehrke Route 1 Box 82, Alexandria, Minnesota.
"Dear Madam:
"W1/2 30-13-50 Cheyenne County
"I duly received your letter of the 8th in which you made a price of $2000.00 on this land and agree to *226 deliver one half of all oil and mineral right. You also stated you would not lease the land until you heard from me.
"I have decided to buy the land on your terms and enclose contracts signed by me with my check for $100.00. Kindly sign and return one copy of the contract.
"Abstract of title should be sent to the Cheyenne Abstract Company, Cheyenne Wells, Colorado with instructions to be delivered to me when brought down to date. When deed is to be delivered I will draw it and send it to you wish.
"Kindly let me hear from you promptly.
"Yours very truly, "Max Van Hall."
Subsequently, under date of April 25, 1946, the landowner wrote as follows:
"Max Van Hall Denver, Colo.
"Dear Sir: —
"Your letter of April 13th is at hand. I am sorry I had a better offer on the West 1/2 of 30-13-50 and N.E. 1/4 of 6-14-50. I am herewith inclosing your check. I thank you.
"Sincerely yours, "Clara Gehrke."
"Before receiving the last-quoted letter from the landowner, the real-estate agent caused to be recorded on April 23, 1946, an affidavit in which he claimed to have an interest in the Gehrke land under a purchase and sale contract. It was the recording of this instrument in the office of the clerk and recorder of Cheyenne county which constitutes the basis of this suit to quiet title.
[1, 2] Counsel for the agent filed six specifications of error, all of which may be determined by a decision as to whether the foregoing correspondence formed a *227
valid contract, and counsel, in their brief, state that this case involves but one question. We do not deny their statement that parties may enter into an enforceable contract merely by an exchange of correspondence,Marti-Matter Company v. Thomas, et al.,
[3] Counsel for plaintiff in error contend that Hall's mere inquiry concerning price does not make him the agent of the landowner (Castner v. Richardson,
In any event, he has altered the basis of the transaction. His shift of position from that of agent to vendee under a purchase and sale agreement must therefore be construed, not as an acceptance of an offer by the *228 landowner — assuming, but not deciding, that there was a firm offer — but as a counter-offer which the landowner had a right to, and did, reject.
[4] In Garrett v. Gerard, 10th Cir.,
This fundamental principle has been recognized by our court from the earliest days, as will appear by the following from Salomon v. Webster,
"Instead of accepting the identical offer made to him, he modifies it, and resubmits it to Webster, with such modification. This letter did not, therefore, of itself, conclude an agreement. Upon this point the law is clear. Unless the proposition made by one is accepted by the other, without any modification whatever, no contract arises. In such case there is no concurrence of parties.
"`If the acceptance modifies the proposition in any particular, it amounts to nothing more than a counter proposition. It is not in law an acceptance which will complete the contract.' Jenness v. Mount Hope Ins. Co.,
Judgment affirmed.
MR. CHIEF JUSTICE BURKE and MR. JUSTICE LUXFORD concur. *229