Ortman v. Weaver

11 F. 358 | E.D. Mich. | 1882

Brown, D. J.

It is entirely clear that complainant’s letter of July 17th was not an acceptance of the proposition contained in defendant’s letter of the 12th. It is well settled that while the acceptance of an offer may be very brief, it must be comprehensive and unconditional. It must go to the whole of the offer, and must not attempt to qualify or vary any of its terms. 1 Parsons, .Cont. 475; Waterman, Cont. 174.

If any further correspondence or action is required by either of the parties to determine whether the offer shall be accepted, the contract is incomplete. While the letter of July 12th contained the simple proposition, viz., to sell for $3,200, if closed at once, for which defendant offered to accept complainant’s note for six months, with interest at 7 per cent., with a good indorser, to be approved by defendant, or some person named by him, the letter of July 17th qualified this offer in the following particulars:

(1) That $500 or $700 should be paid in cash, upon delivery of the deed.

(2) That the note for the residue should be given by M. E. Ortman, complainant’s- wife, and De Eorest Paine, jointly, indorsed by complainant.

(3) That the deed should be made to M. E. Ortman and De Eorest Paine, jointly.

(4) That it should be forwarded to O’Brien and held by him- until the note matured, and if the note were not paid it should be returned to defendant.

Bearing in mind that defendant was desirous of “making a finish of it now, ” and of assuring himself that the paper should be good and collectible, it will be seen that in complainant’s reply he proposed to give security selected by himself, and to .have the matter remain open until the maturity of the note, when, if it were not paid, the deed should be returned. It is also clear that nothing can be claimed upon complainant’s telegram of August 4th, since complainant had sold the lands two days before to Hollenbeck.

The bill, then, if sustained at all, must rest upon Mr. Paine’s letter of July 31st, which is claimed to have been an unequivocal acceptance of defendant’s proposition. Assuming it to be such, the question arises whether, afte!r having once declined defendant’s proposition of July 12th, he was at liberty to accept it, and whether his acceptance-was not too late.. The letter of July 17th, not being an acceptance of defendant’s proposition, he was entitled to treat it, and did treat it, as a rejection. Complainant therein made certain qualifications, which amounted to an offer on his part, and required a reply from the defendant. Receiving no reply, he was not at liberty to accept the original proposition unconditionally. Mr. Parsons, in his work upon Contracts, vol. 1, p. 477, states the proposition as follows:

“ The party making the offer may renew it, but the party receiving it cannot reply, accepting with modifications, and, when these are rejected, again reply, accepting generally, and upon Ms acceptance claim the right of holding the other party to his first ofl'er.”

No cases are cited hy him; hut the case of Hyde v. Wrench, 3 Beav. 384, supports this proposition. In this case the defendant, on the sixth of June, offered in writing to sell his farm for a thousand pounds. The plaintiff offered ¿6950, which the defendant, on the twenty-seventh of June, after consideration, refused to accept. On the 29th the plaintiff, by letter, agreed to give a thousand pounds, but there appeared to be no assent on the part of the defendant, though there had been no withdrawl of the first offer. Held, that there was no binding contract within the statute of frauds. This case varies from the one under consideration only in the fact that in Hyde v. Wrench the plaintiff’s modification of defendant’s offer was expressly rejected hy defendant. In this case the rejection can only be inferred from the fact that defendant declined to reply to complainant’s letter and proceeded to sell the land to another party.

The case of Fox v. Turner, 1 Bradw. 153, is still more directly in point. It was there held that a proposal to accept an offer on tetms varying from those proposed amounts to a rejection of the offer, and a substitution in its place of a counter proposition. This cannot become a contract until assented to hy the first proposer. The original offer thereby loses its vitality, being, so to speak,-passed hy in the course of the negotiation so as to be no longer binding between the parties. It becomes an open proposition again only when renewed hy the party who first made it. Hence the party who submitted the counter proposition cannot, without the assent of the other party, withdraw or abandon the same and then accept the original offer which he has once virtually rejected. I would not say that a person might not accept an offer with qualifications upon one day, and upon the next day, and before his counter proposition is rejected, accept unconditionally. But where the qualified acceptance is rejected, or sufficient time has elapsed from which a refusal should be inferred, the party to whom the offer is made cannot then treat it as still in force and accept it. In the case under consideration there was a total neglect on the past of defendant to answer or notice complainant’s letter for two weeks. The inference was inevitable that he declined the modifications proposed.

2. But I think the letter of July 31st is open to the further objection that it was not seasonable. Assuming that after the letter of July 17th it was still within his power to accept, it is entirely clear that the acceptance must have been made within a reasonable time. If, by the original proposition, a time is limited within which the other party may accept, he must mail his letter of acceptance within that time, and if a reply is requested by return mail he must at least mail his reply within 24 hours from the time the offer is received, Maclay v. Harvey, 90 Ill. 525; Minn. Oil Co. v. Collier Lead Co. 4 Dillon, 435; Dunlop v. Higgins, 1 House of Lords, 381.

If no definite time is stated then the offer must be accepted within a reasonable time under all the circumstances of the case. Now, bearing in mind that other parties were seeking to buy this land, and that defendant was desirous of making an immediate disposition of it, it seems to me that the delay of over two weeks was much longer than the offer warranted. I think the defendant was authorized to treat the letter of July 17th as a rejection of his offer, and was at liberty to proceed and dispose of the land to other parties.

A decree will be entered dismissing the bill.