Porter v. Cook

114 Wis. 60 | Wis. | 1902

Dodge, J.

By reason of the view we have taken as to the effect of the delivery by Porter of a deed, and the acceptance thereof by the defendant, most of the questions discussed by counsel on this appeal are rendered immaterial. We are unable to avoid the conviction that that transaction must be deemed a final and conclusive settlement and adjustment of all the disputes arising under the contract of .sale. There is not the slightest doubt that the paper was executed and left in the custody of the arbitrator, Beyer, as the only thing which Porter was willing to do as a compliance with that contract or with the award. There is no particle of evidence that Beyer was anything but a custodian to hold that deed until the sum of money specified by his award was paid, and then to deliver it as full discharge of Porter’s obligation under the former contract, according to his contention. This being the situation, defendant accepted that deed and paid his money, with the circumstances of protest more fully set forth in the statement of facts herewith. Defendant had no right to that deed except upon the terms assented to by Porter. His right, if Porter refused to carry out the agreement which they had made, was to bring action against him, either for specific performance or for damages resulting from the breach. He had no other alternative to the acceptance of the deed on the terms which Porter had imposed. Perin v. Cathcart (Iowa), 89 N. W. 12, 13; Keck v. Hotel Owners’ M. F. Ins. Co. 89 Iowa, 200, 56 N. W. 438; Woodford v. Marshall, 72 Wis. 129, 133, 39 N. W. 316. His act in accepting it is unambiguous, and its legal effect cannot be averted by protesting that he will not be bound thereby. Rutledge v. Price Co. 66 Wis. 35, 27 N. W. 819. Of course, Porter might have consented to delivery of the deed upon the terms contended for by defendant; and if, after a protest to himself such as Cook's attorney made to Beyer, Porter had still delivered the deed, there might well have been a question of fact whether such act did not evince an assent to its delivery, not in full settlement but subject to adjustment of the still disputed rights. But no one except Porter, or an agent authorized by him, could make such assent. This rule rests on the most elementary principles of contract law, namely, that a proposition must be accepted exactly as it is made, or not at all, unless the offerer assents to modification. One to whom an offer is made cannot take to himself the benefits thereof without becoming bound to all the terms upon which it is made. No protest that he will not be bound can avail him, except as it may, with, surrounding acts and circumstances, serve as evidence that the other assented to some modification. To have such effect the protest must, therefore, he made to one having- authority to modify; otherwise, of course, his conduct could he of no significance. When and if Cook declared that he would take the deed only as conveyance as far as it went, and would reserve his rights upon the original contract, Porter had the right to respond that he would not deliver it at all. Of this right he has heen deprived, and in it he cannot he reinstated after defendant has conveyed away the lands'to others, so that we need not discuss any right to rescind hy the latter upon re-estahlishing the status quo. Indeed, no effort to that end has heen made; nor, probably, could it now be done, in the light of the well-established rules of law most recently considered in Bostwick v. Mut. L. Ins. Co. 89 N. W. 538.¹ The situation differs radically from that presented in certain cases cited hy respondent, — as, for example, in Ketchum v. Wells, 19 Wis. 25, where a purchaser, having ignorantly accepted at a distance, and removed to his factory, certain defective stave holts, was held not to waive his right to damages for the defects by using them after discovery, when serious damage would have resulted from stoppage of his mill hy refusal to use them; and, for further example, where one pays unlawful demand for money to release his goods or person. Scholey v. Mumford, 60 N. Y. 498. Here, the rights of the parties being- in dispute, plaintiff offered the conveyance only on condition that it settle that dispute, with full knowledge and understanding by both parties as to how far it varied from the rights asserted hy Cook. Its acceptance or rejection on those terms was matter of new contract, and defendants adoption of the one course or the other can he avoided for duress or coercion only when it is such as to override the will of tbe consenting party. The fact that he must decide between serious inconvenience, embarrassment, or loss as the result of electing either course is not enough. City Nat. Bank v. Kusworm, 91 Wis. 166, 64 N. W. 843; Wolff v. Bluhm, 95 Wis. 257, 70 N. W. 73; Rochester M. T. Works v. Weiss, 108 Wis. 545, 84 N. W. 866. The conclusion is irresistible that Cook, by taking Porter’s deed, has accepted full satisfaction of the contract between them, and has no rights of action, except upon the deed itself. That being without warranty, and all defects in title to lands therein de-seribe'd having been fully known to Cook when he accepted it, he has no right of action thereon. The allowance of anything upon the counterclaim was erroneous, and must be eliminated from the judgment.

By the Court. — The judgment is modified as of its date by substituting the sum of $1,468.34 in place of the sum of $340.32 as the amount due upon the mortgage above all payments and setoffs, and to be paid in redemption or realized upon sale; and, as so modified, the judgment is affirmed. Appellant to recover costs in this court.