25 Mich. 94 | Mich. | 1872
Complainant sues for the specific performance of a contract which is alleged in the bill with considerable fulness, not by its terms as claimed to have been made, but according to what it is supposed was its legal intent. It is alleged as a contract in writing, executed and delivered by the said Jane D. Jelly to your orator, whereby she “contracted and agreed to and with your orator, to grant, bargain, sell, and convey to your orator the said premises and appurtenances, and to make out a good title thereto, valid sufficient in law, and to execute, acknowledge, and deliver to your orator a good and sufficient deed of conveyance of the said premises and. appurtenances, for the sum of ten thousand seven hundred dollars, to be paid by, your orator in manner following, to wit: four thousand seven hundred, on the execution of said deed, and six thousand, in two
The contract relied upon under the evidence is deduced from three letters. The first letter, written and received December 20th, is an inquiry whether defendant still wished to sell the property, and, if so, asking her lowest price and terms.
The second letter is her answer, written December 21st, and, as she testifies, mailed between nine and ten that morning, which is in the following terms:
“Detroit, Dec. 21, 1871.
“Mr. T. D. Hawley:
“Sir — I received- your note of the 20th; I will sell for ten thousand, seven hundred dollars, four thousand seven hundred down, the remaining six thousand in two years, at ten per cent. There is .two hundred and fifty-nine feet
“ Yours respectfully,
Jane D. Jelly.”
The third, dated December 22d, and which she testifies she received on the morning of Saturday the 23d, was an acceptance of her offer and terms, and a statement of readiness to comply with the conditions.
On Saturday afternoon, about 3 o’clock, Mr. John G-. Hawley, a brother and agent of complainant, called on Mrs. Jelly and requested an abstract. She said she had one, but that she Avould not let complainant have the property for the price named, that she had had a better offer, or could do" better; but if he came up that afternoon or evening, she would sell to him for eleven thousand dollars, —that is, three hundred dollars more, — but would not promise to do so after that. He made no reply or claim of any kind, and on leaving, Avith the abstract Avhieh she gave him, told defendant he Avould inform complainant she Avanted three hundred dollars more to close the bargain. This is all that occurred at that or any other .time between any of the parties, and on the succeeding Tuesday, the day after Christmas, she made a bargain Avitk other parties, for twelve thousand dollars, and the same day, whether earlier or later does not appear, this bill was filed.
It appears also, that this property is near the proposed city park, upon Avlrich there was to be a vote of the freemen of the city on Wednesday, December 27, and that parties Avere constantly applying for the purchase of the land in vieAV of that project.
Complainant testifies that he had formed an idea that she could not be depended on to carry out a verbal contract, and therefore took pains to have everything in writing. His account of his brother’s report of the interview corresponds with defendant’s. He says he gave his brother no directions, except to get the abstract, and find out how soon Mrs. Jelly would be ready to finish the matter up.
■The case presented is one where the complainant’s reliance is on a strict legal right, involving no peculiar equities. The defendant has acted on an honest belief that no contract existed, or was claimed to exist. 'No fraud is attributable to either party.
We should desire to consider very seriously whether the testimony shows any contract, if its legal existence in the first instance became material. But we do not propose to discuss that question.
The letter of Mrs. Jelly indicates distinctly that she expected an immediate and decided compliance with her terms, and a complete sale without any delaj7. The circumstances were such as to make time an essential element in the conduct of the parties. The letter shows she was negotiating with others and expected to renew the negotiations, and there were but three business days before the park meeting.
Complainant did not visit her personally at all, and did not attempt to have any conference with her through his
Although under ordinary circumstances such a delay might not be very unreasonable, there was much in the present case to make it so. The defendant’s proposals indicated some knowledge of the title and no desire to make further examination. He aimed at getting an absolute offer, and gave an absolute acceptance. It is evident defendant would never have granted any delay, and under the circumstances it was not to be supposed she would deal with any one who had not satisfied himself about the title. By taking the time proposed to himself, complainant would have completely cut off all chances of her .selling to others before the park meeting, and if he then saw fit to decline purchasing might subject her to a litigation, to which she might prefer submission to some loss.
But, if complainant’s agent had informed Mrs. Jelly that he claimed she was actually bound by contract, she might have acquiesced, or guided her conduct on the basis of such a claim. Not supposing she had bound herself, she positively declined recognizing complainant’s right. On learning this, and that unless she heard from complainant that evening she would not even bind herself to sell at eleven thousand dollars, the complainant’s claim should have been asserted on the spot, and, failing in this, he was bound, when he received the report of his brother, to have at once notified her of his asserted rights. His conduct
Assuming that there ever was a contract, the conduct of the complainant fully justified her in supposing none was claimed to be binding on her, and it would not be equitable now to enforce it.
The court below acted properly iu dismissing the bill, and the decree must be affirmed, with costs.