Lyman v. Robinson

| Mass. | Jan 15, 1867

Foster, J.

The only consideration of the notes upon which this action has been brought is an alleged agreement by the plaintiff as agent to sell and convey, and by the defendant to purchase, certain lands in Kansas. It is found as a fact that the trustees, whose agent the plaintiff was, ratified all his acts in the premises. The case may therefore be considered as though the plaintiff had been himself the owner of the lands which were the subject of the negotiation between the parties. The correspondence between the plaintiff and defendant is the only evidence from which we are called upon to determine whether they entered into any agreement amounting to a valid consideration for the notes. We have examined the numerous letters with great care, and deduce from them the following conclusions :

It seems clear that in the early part of the correspondence neither party had reference to the Webb lot as embraced within their negotiations. Both had in view the list of property given in Lyman’s letter of June 11th. The precise date of the purchase of the Webb lot does not appear. But the account rendered by Robinson shows that it must have been bought some time in June ; and Lyman’s letter of September 1st showTs that he had then received a deed of it. Robinson’s first offer of July 29th was to take the whole of the trust lands at twenty per cent, above their cost. We perceive no reason to suppose that this proposal was not oy him intended to include the Webb lot, and it certainly did include it in terms. Lyman’s reply of August 11th solicited a simple offer for all the property, and suggested that the price of $15,000 would probably be accepted by the trustees. This letter was not an offer to sell at that price, but a strong intimation that if Robinson chose to make the offer it would be accepted. So far as we can judge, by a comparison of dates, when this letter was received Robinson may well have understood that notice of the Webb purchase had already reached Lyman. When it was answered, September 1st, the deed of that lot had been in his possession. Robin son’s letter of September 14th made distinctly the offer of $15,000 “for the trust general investment.” This language necessarily included the Webb lot, and thus far in the correspondence we find nothing to indicate that either party expected that any of the lands which had been purchased for the trustees were to be excluded from the proposed sale ; the inducement to make which on the part of the trustees had been declared by Mr. Lyman to be to close the trust. But Mr. Lyman’s next letter of October 2d limits his acceptance to the purchases of which the trustees were informed on August 11th, the date when he had written suggesting the price of $15,000. This was natural and fair enough on-the part of Mr. Lyman and the trustees. But Robinson made no offer with such a qualification, and none was accepted without it.

The only interpretation we can put on the correspondence is, that the minds of the parties did not meet and agree upon the subject matter of the contract. They agreed on the price to be paid, but differed as to what was to be purchased for that price. And this difference was never reconciled. Neither party at any time yielded to the claim and construction contended for by the other. The case presented is therefore one of an imperfect negotiation, and not a completed contract.

Nor can we regard Robinson’s letter of October 16th, inclosing the notes now in suit, as a waiver by him of his claim to have the Webb lot included in the bargain. For this lot is a part of the list of the property for which the notes were given, contained in that letter; and it is added in a postscript, “ You will of course forward a suitable paper, as evidence of the sale.” The notes must be regarded as having been sent on the condition that the Webb lot should be embraced in the contract which was to be given in return. They were also sent in conformity with a request in Lyman’s last preceding letter, and upon the assurance, on which Robinson was entitled to rely, that. “ upon the above notes coming to hand the trustees will give you a receipt for the notes in a form not to effect any incumbrance on the land, but fully acknowledging their responsibility to yourself.”

Furthermore, if the parties had agreed what lands were to be included in the contract to be drawn up, and for which the notes were given, another insuperable difficulty would remain. They had negotiated as to the mode by which the trustees should receive payment. The title to all the lots was to remain in them, each was to be valued separately, and upon payment of the agreed valuation of any lot Robinson or his appointee was to be entitled to receive a deed thereof. The object of this arrangement was twofold; to keep the trustees constantly secured so that they might not convey away any part of the property until they were paid for it pro raid; and on the other hand, Robinson ■was to be entitled on each such proportional payment to have a conveyance of so much land as he paid for. This provision was especially important to him, as both parties well understood that he bought the land to sell again, with a view to the profits of such sales. The valuation to be placed on the several lots was therefore a material and essential term of the bargain to both parties; to the trustees, as affecting their security; to the purchaser, as enabling him to make from time to time partial sales, and thus obtain the means of meeting his own payments. In the letter inclosing the notes was contained the valuation proposed by Robinson; but the reply of Lyman, November 17th, rejected this valuation, and required Robinson to accede to a different one. Lyman says: “ If you will amend the valuations by fixing each Quindaro share at $300 instead of $250, and striking out the Webb purchase, the papers can be at once settled.” This never was done, and the failure of the parties to come to a definite agreement on this point of itself precludes the idea of any completed contract.

This language of Lyman, and Eobinson’s previous statement to him, “you will of course forward a suitable paper as evidence of the sale,” have in another aspect an important bearing upon the case. A valid contract may doubtless be made by correspondence, but care should always be taken not to construe as an agreement letters which the parties intended only as a preliminary negotiation. The question in such cases always is, did they mean to contract by their correspondence, or were they only settling the terms of an agreement into which they proposed to enter after all its particulars were adjusted, which was then to be formally drawn up and by which alone they designed to be bound ? “ The circumstance that the parties do intend a subsequent agreement to be made is strong evidence to show that they did not intend the previous negotiations to amount to an agreement.” Lord Cranworth, in Ridgway v. Wharton, 6 H. L. Cas. 268. In the same case, Lord Wensleydale says, p. 304: “An agreement to be finally settled must comprise all the terms which the parties intend to introduce into the agreement. An agreement to enter into an agreement upon terms to be afterwards settled between the parties is a contradiction in terms. It is* absurd to say that a man enters into an agreement till the terms of that agreement are settled. Until those terms are settled, he is perfectly at liberty to retire from the bargain.”

These remarks are strikingly applicable to the present case. The parties were discussing the terms of a paper to be drawn up and signed by the trustees themselves. They could not agree what property should be embraced in this contemplated contract, nor how much the purchaser was to pay to become entitled to a separate deed of the different parcels. Their negotiations remained incomplete, and neither party became bound. Consequently the notes were without consideration, and by the agreement in the report the plaintiff must become nonsuit.

Plaintiff nonsuit.