68 F. 742 | 6th Cir. | 1895
Having stated the case as above,
delivered the opinion of the court.
We think it quite clear that it was competent for the parties to become bound by correspondence carried on in the way in which this was, — -by letters and telegrams,- — -and that these, when put together, if they made out an assent of the parties to the terms of sale, would make a binding agreement, which could be specifically enforced, and that such a mode of creating a binding contract would be sufficient under the statute of frauds of the state of Kentucky, which seems to be not essentially different from that of other states, in re
We come then to the main question in the case, which is whether the principals ever came to an agreement. When the original petition in the case was filed in the state court, the complainants based their suit upon a supposed contract created by their offer of October 10th, and the acceptance thereof on October 11th by Pope, for Jones, under the authority of Jones’ telegram to Pope bearing the same date as Pope’s acceptance of the offer made on October 10th. This telegram of October 11, 1893, was as follows: “I accept the offer in your telegram of October 2nd, provided the notes are properly secured on the property.” Thus it will be seen that the authorization of Pope by Jones was to accept a contract of the terms of October 2d. This is plainly indicated by the language of the telegram itself; and, if that were doubtful, it is made clear that Jones’ authorization of acceptance had no reference to the offer made on October 10th, for he then had no knowledge of that proposition. It follows that Pope was without authority to bind his principal ito the terms contained in complainants’ proposition of October 10th, unless that proposition was in fact identical with, and a mere continuation of,- the proposition of October 2d. Whether it was so or not we will consider further on. The statement of the alleged contract made in the original petition leaves a fatal hiatus, in not setting forth what was the offer contained in Pope’s telegram of October 2d, for it was that offer only which the petitioner shows Jones had given Pope authority to accept It was not stated in the petition that the offer of October 2d was the same as the offer of October 10th, and
But there is another difficulty. The instrument of October 10th, made by the complainants, was made the day before the date of Jones' telegram authorizing the acceptance of their offer, and this circumstance negatives the contention that it was made in the elaboration and further explanation of the contract already made; and the oral testimony taken in the case fails to satisfy us that this paper of October 10th, signed by the complainants, was in fact intended to be anything else than to be the foundation of the contract they proposed to make. We are convinced that the fact was that, while the complainants were waiting for Jones’ reply to their offer of October 2d, they formulated a fresh offer, and then, when Jones’ telegram came, Pope, instead of executing his authority by accepting the original offer of October 2d, accepted the other offer of October 1.0th, assuming that that amounted to practically the same thing as the first offer, and would be equally acceptable to his principal. We have no doubt that this general statement embodies the substantial fact.