Hay v. Lewis

39 Wis. 364 | Wis. | 1876

Pee CubiaM.

This court has no power to amend, the record as it is returned here from the court below. It can, on proper suggestion, order a further return, or remit the record for correction, and enforce its orders. But the court below alone possesses power to add to or take from the record. For this reason, apparently, the present motion is not to correct the record, but to strike out from the printed case what it is claimed is improperly made a part of the record. The sole office of the printed case is to present correctly the material parts of the record, in a form convenient for the use of the 'court. And the court cannot strike from the printed case whére it properly and correctly follows the record. "Were this to be done, the record itself would remain as it is, and would govern the judgment of the court. The respondent’s motion, therefore, cannot be granted, and would not avail him, if granted.

Motion denied, with clerk’s costs.

The cause was then argued upon the merits.

Moses M. Strong, for respondent:

1. The telegram -was an acceptance of the proposition. Trevor v.Wood, 36 N. Y., 307; S. G., 3 Abb., N. S., 355; Scott & Tarn. Law of Telegraphs, cli. 6, §§ 295, 296, 332, 333; Bedfield on Carriers, §§ 541-551; Parsons on N. & B., 486; FT. T. do Wash. Telegraph Go. v. Drylwrg, 35 Pa. St., 298; Dunnimg v. Bolerts, 35 Barb., 463. 2. If the communication had been verbal or by letter, it wonld have been an acceptance. It was no less so because sent by wires. Adams v. Limdsell, 1 Barn. & Aid., 681; Tayloe v. Merchants’ Fwe Ins. Go., 9 How. (U. S.), 390; Yassm v. Gamp, 1 Kern., 441; Mactier’s Adm’rs v. Fwth, 6 Wend., 103. 3. The telegram was sufficient authority to Ileivry to contract with plaintiff for the sale of the premises. The authority would have been sufficient if it had been verbal. Story on Agency, § 50, note 3; Paley on Agency, 159; 2 Kent’s Com., 614, § 41; 1 Parsons on Con., ch. 3, sec. 2, note (s); Goles v. Trecoth-ich, 9 Yes. Jr., 234; Biley v. Miner, 29 Mo., 439; Bottman v. Wasson, 5 Kans., 552; Groff v. Bamsey, 19 Minn., 44; Long v. JLcvrtwell, 34 N. J., 116; Shcm v. Nudd, 8 Pick., 9; Fwimg v. Tees, 1 Bin., 450; Lawrence v. Taylor, 5 Hill, 107; Me Whorter v. McMahan, 10 Paige, 386; Dodge v. Hophins, 14 Wis., 630. Counsel further argued that the findings were sustained by the evidence.

Btaet, C. J.

In our view of this case it is unnecessary to determine whether any agreement was in fact made between the appellant Mrs. Lewis and the respondent, for the sale of her premises, or whether such agreement, if made, is valid under the statute of frauds.

For, in our view, a valid agreement may be assumed. “ The question then recurs, Is it the dictate of sound legal discretion, that this agreement should be specifically carried into execution. by the authority of this court? It is an application to sound discretion. This has been the uniform language of the courts of equity. It is not a case requiring the aid of the court ex débito justitice. It is a settled principle that a specific performance of a contract of sale is not a matter of course, but rests entirely in the discretion of the court, upon a view of all the circumstances. £ The jurisdiction’ as Lord Eldoh observed, 12 Vesey, 331, £is not compulsory upon the court, but the subject of discretion. The question is, not what the court must do, but what it may do, under the circumstances.’ A court of equity must be satisfied that the claim for a deed is fair and just and reasonable, and the contract equal in all 'its parts, and founded on an adequate consideration, before it will interpose with this extraordinary assistance. If there be any well founded objection on any of these grounds, the practice of the court is to leave the party to his remedy at law for a compensation in damages.” Seymour v. Delancey, 6 Johns. Ch., 222. This is the well established rule, expressly affirmed by this court. Smith v. Wood, 12 Wis., 382.

It is very certain that before Mrs. Lewis' agent had made any contract under which the respondent can claim, for the sale of her property for $450, the appellant Mr. Treweeh had offered the agent $550 for it. Upon Hilton, under whom the respondent claims, objecting to the acceptance of Treweék's offer and insisting upon his own less offer, Treweék, to avoid controversy, withdrew his offer; and then the agent accepted Hilton’s offer and gave the receipt in the name of the respondent. Subsequently Treweék purchased from Mrs. Lewis directly for $600.

If Mrs. Letois had authorized her agent to accept Hilton’s offer, it was on the ground that it was for the highest price to bo got. And the offer of a higher price ought to have been held, in good faith, to revoke the authority to accept the lower, yet unaccepted by the agent. And even when the higher offer was withdrawn, in the maimer it was, we cannot but think tbat Mrs. Lewis ought to have been advised of the circumstances before -the agent accepted the less offer. The case shows that the sale of her property, if sale it was, was for a less sum than it was reasonably apparent a little patience would have secured.

But however that may be, the respondent can claim only under Hilton. And it was by Hilton’s means, acting in his^ own name but on behalf of the respondent, that Treweek was induced to withdraw his higher^offer. Under such circumstances, we cannot hold the respondent’s contract, if contract there was, to be, in the language of Smith v. Wood, just, fair' and upon adequate consideration. The rule will hot permit us to disturb Mrs. Lewis’ sale for the higher price to Treweek, or to enforce specific performance of Hilton’s alleged contract in the name of the respondent for the lower price, when Hilton is responsible for the withdrawal of. the offer of a higher price. The respondent must be left to enforce any right which he may have, by action at law.

By the Oowrt. — The judgment of the court below is reversed, and the cause remanded with directions to dismiss the complaint.