Kreutzer v. Lynch, 122 Wis. 474

Kreutzer v. Lynch

122 Wis. 474 | Wis. | 1904

Dodge, J.

The pivotal question arises upon the construction of Mr. Kreutzer’& letter of June 17th. Is it a complete and categorical acceptance of the offer of the land at $6,000 ? Or is the last clause to be read as a condition or qualification of the acceptance, so that it attempted to import new terms not specified in the offer ? Of course, the law is well settled and not materially disputed between the parties. An offer must be accepted in its exact terms in order that a contract should arise thereon, and any attempt to impose new conditions or terms in the acceptance, however slight, will ordinarily deprive it of any efficacy. Clark v. Burr, 85 Wis. 649, 55 N. W. 401; Russell v. Falls Mfg. Co. 106 Wis. 329, 82 N. W. 134. Letters bearing close similarity to that here presented received consideration in Northwestern I. Co. v. Meade, 21 Wis. 474; Matteson v. Scofield, 27 Wis. 671; and Baker v. Holt, 56 Wis. 100, 14 N. W. 8. In the first and third of these the direction as to sending deed and method of closing the transfer was considered as a qualification of the acceptance; while in Matteson v. Scofield it was held to constitute a mere suggestion or request, which did not qualify the direct and categorical acceptance contained elsewhere in. *477the letter. Each of the letters so considered was marked by some slight differentiation from that in the present case; but these varying views of court at least serve to establish that such a letter is not necessarily clear or certain in its significance, but may contain a measure of ambiguity. In both Matteson v. Scofield and Baker v. Ilolt it is held that such ambiguity might be resolved by extrinsic facts surrounding the transaction and by the conduct of the parties. In the present case there was evidence of conversation between the parties which might have served as an invitation to Mr. Kreutzer to suggest a method of closing the transaction by mail — the defendant Lynch having suggested to him that that might be done. Again, correspondence between and conduct of the parties after the sending of the letter qf June 17th was offered as significant upon the meaning of this letter and the understanding of it by Mr. Lynch. Upon this evidence the trial court has found that the request for transmission of the deed and abstract to a bank at Wausau was intended by Mr. Kreutzer and was understood by the defendants simply as a suggestion and request, and not as a condition of acceptance. There being extrinsic evidence admissible upon this subject, with no clear and overwhelming preponderance to the contrary, the finding of the court must conclude us on this question. Chicago, St. P., M. & O. R. Co. v. C., M. & St. P. R. Co. 113 Wis. 161, 170, 87 N. W. 1085, 89 N. W. 180. Thus the situation is brought clearly and directly within the rule of law announced in Matteson v. Scofield, and we must hold that by the letter of June 17th Lynch’s offer was accepted according to its exact terms and without qualification, and thereby a mutual executory contract for the sale and purchase of the land arose. Peterson v. Chase, 115 Wis. 239, 91 N. W. 687.

The appellant further contends that, even if the foregoing conclusion be reached, still plaintiff would have no right to maintain action without a formal tender to the defendants of *478the purchase price, accompanied hy demand for a deed. This condition of recovery under ordinary circumstances seems to he well supported hy Northwestern I. Co. v. Meade, supra, and Sizer v. Clark, 116 Wis. 534, 542, 93 N. W. 539. If nothing else had occurred, doubtless it was the right of the defendants to wait until such a tender and demand were made before they could he held to have broken their contract to sell. I3ut it is also a fundamental principle governing most human affairs that conduct on the part of one justifying belief in the other that certain action on his part would he futile constitutes a waiver of such action. Potter v. Taggart, 54 Wis. 395, 11 N. W. 678; Gauche v. Milbrath, 94 Wis. 674, 69 N. W. 999; Matthews v. Capital F. Ins. Co. 115 Wis. 272, 275, 91 N. W. 675; Jones v. Valentines’ School, ante, p. 318, 99 N. W. 1043. It fully appears in this case that the defendant Lynch, without waiting for such tender, denied the existence of any contract, and notified the plaintiff that no conveyance of the land would he made for $6,000; and this of itself constituted a repudiation and breach of the contract, and waived the tender of the purchase price as a step necessary to the placing of defendants in default. Plaintiff was thereby fully informed that, if he presented himself at Lynch’s residence at West Bend and tendered the $6,000, it would he vain.

Appellant raises the further question whether this option so created an interest in land as to he assignable, and supports the negative hy several citations from other jurisdictions, hut seems to concede that the affirmative has the support of the Wisconsin authorities. We agree with the latter view, and deem those authorities conclusive upon the question. Dreutzer v. Lawrence, 58 Wis. 594, 17 N. W. 423; Telford v. Frost, 76 Wis. 172, 44 N. W. 835; Wall v. M., St. P. & S. S. M. R. Co. 86 Wis. 57, 56 N. W. 367; Maxon v. Gates, 112 Wis. 196, 88 N. W. 54; Sizer v. Clark, 116 Wis. 534, 93 N. W. 539.

*479The next objection to the judgment urged by appellants is that the 'agreement was never signed by the defendant Mary E. Kelly, and therefore, under the statute of frauds, could not constitute a binding contract on her to convey, which could be specifically enforced as against her interest. But the court has found that she and the defendant Lynch held said land for sale under an agreement of copartnership, which authorized Lynch to exercise entire management and control, and that she was informed of the giving of this option and acquiesced therein, and that Lynch informed plaintiff before the acceptance of the option that he acted in the matter on behalf of himself and his copartner. From these facts no conclusion is possible save that Lynch was the duly authorized agent for the defendant Mary E. Kelly to manage the business of selling this land owned by them jointly, and that his signature to the offer was, in effect, on behalf of himself personally and of his copartner. That he might thus bind her by a contract in writing satisfying the statute of frauds, although his own authority as agent may have been by parol, is fully established in this state. Brown v. Griswold, 109 Wis. 275, 85 N. W. 363.

Bo other arguments are advanced which, upon the facts, require consideration. We are convinced of the correctness of the trial court’s conclusion that a binding contract for sale of this real estate was made, and that under all the circumstances a decree for specific performance might properly be made within its judicial discretion.

By the Gourt. — Judgment affirmed.