181 P. 134 | Nev. | 1919
By the Court,
On October 25, 1916, the respondent commenced this action in claim and delivery to recover the possession of certain specific personal property. To the complaint an answer was filed denying ownership of the property in the plaintiff, and pleading title thereto in defendant.
The facts are these: On June 1, 1912, the Nevada Engineering Works, a corporation (hereafter designated the company), entered into a written contract of sale with one George H. Davis of the property in question for the sum of $4,040, one-third payable upon the execution of the contract, one-third upon the delivery of the property, and the balance when the mill was erected upon certain mining property owned by the said Davis. It was further agreed that the title to the property was to remain in the company until the full purchase price was paid. The sum of $948 on account of the purchase price of the property was never paid. Prior to the institution of this suit the company, in writing, assigned its claim to the plaintiff. On September 7, 1912, negotiations were opened by Davis with the company, with a view on.his part of executing his notes for the balance due, and taking title to the property. On September 13, 1912, the company wrote to Davis as follows:
“Dear Mr. Davis: We are enclosing herewith two notes for you to sign, with statements attached, showing the accounts settled by each. This is in accordance with your letter of September 7th.
“The first note is for $958.48, due October 10, 1912, and covers the balance due on the contract for the stamp-mill machinery, allowing you credit for your two cash payments of $1,346.66 each, and for the freight paid by you on the battery guides from San Francisco, $36.75, and on the oil engine, $331.45.
“The second note is for $1,052.69, due November 10, 1912, and covers the balance due on your account for supplies furnished as per our statement attached.
“We hope you will find both notes in order, and upon their return, properly executed, will attend to the matter of a bill of sale. * * * ”
This letter was received by Davis at Salt Lake City,
“Will allow extension on your notes, but will not relinquish ownership of machinery,”— and on the same day sent a letter of like purport to him. It is contended that the company did not receive the notes, properly executed, until four days thereafter.
“The practical conclusion seems to be that every prudent man who makes an offer of any importance by letter should expressly make it conditional on his actual receipt of an acceptance within some definite time. It would be impossible to contend that a man so doing could be bound by an acceptance which either wholly miscarried or arrived later than the specified time.”
Denio, J., in Vassar v. Camp, 11 N. Y. at page 451, says:
“The defendants’ counsel, however, maintains that, by a fair construction of the proposition made by the defendants in their letter of the 30th of August, it was made a condition that the contract should not become operative until the plaintiffs’ assent had actually come to the knowledge of the defendants. Notwithstanding the rule of law which I have considered as settled by the judgment of the Court of Errors, I do not doubt but that a party proposing to contract may make it a condition that no bargain shall arise or be consummated until the affirmative answer of the other party shall be actually received by the party proposing.”
'Gray, C. J., in Lewis v. Browning, 130 Mass. 173, lays down the rule as follows:
“But this case does not require a consideration of the general question; for, in any view, the person making the offer may always, if he chooses, make the formation of the contract which he proposes dependent upon the actual communication to himself of the acceptance. Thesiger, L. J., in Household Ins. Co. v. Grant, 4 Ex. D. 223; Pollock on Con. (2d Ed.) 17; Leake on Con. 39, note. And in the case at bar the letter written in the plaintiff’s behalf by her husband as her agent on July 8, 1878, in California, and addressed to the defendant at Boston, appears to us clearly to manifest such an intention. After proposing the terms of an agreement for a new lease, he says: ‘If you agree to*459 this plan,, and will telegraph me on receipt of this, I will forward power of attorney to Mr. Ware,’ the plaintiff’s attorney in Boston. ‘Telegraph me “Yes” or “No.” If “No,”' I will go on at once, to Boston with my wife, and between us we will try to recover our lost ground. If I do not hear from you by the 18th or 20th, I shall conclude “No.” ’ Taking the whole letter together, the offer is made dependent upon an actual communication to the plaintiff of the defendant’s acceptance on or before the 20th of July, and does not discharge the old lease, nor bind the plaintiff to execute a new one, unless the acceptance reaches California within that time. Assuming, therefore, that the defendant’s delivery of a dispatch at the telegraph office had the same effect as the mailing of a letter, he has no ground of exception to the ruling at the trial.”
See, also, 6 R. C. L. p. 615; 9 Cyc. 296; 13 C. J. 302.
In Morrill v. Tehama M. & M. Co., 10 Nev. 125, it was held that, in order to make a valid contract, an offer must be accepted according to its terms. The facts in the instant case are substantially the same as those in the case of Lewis v. Browning, supra. In that case a power of attorney was to be executed upon the receipt of a telegram, while in the case at bar the deal was to be consummated upon the receipt of notes properly executed. When Davis signed the notes and mailed them, it must be presumed that he accepted the offer of the company as embodied in its letter, according to its terms, and hence it cannot be said that a contract could have been in force until the notes were received, duly executed; and, the offer having been withdrawn before they were received, no contract was in fact consummated.
While there are several other errors discussed in the briefs, we think they are disposed of by what has been .said, or else turn upon questions of fact concerning which it may be said that there is sufficient evidence in the record to justify our refusal to disturb the findings of the court.
The'judgment is affirmed.