9 Utah 329 | Utah | 1893
Plaintiffs brought this action upon a verbal contract, alleging that the defendants agreed with plaintiffs that-if said plaintiffs would find and produce to them a purchaser
“ Know all men by these presents, that George A. Etzel, D. E. Moore, John O. Weeter, and Joseph Armstrong, of the county of Salt Lake, parties of the first part hereto, are held and firmly bound to George Arthur Eice and William Gelder, who are styled the parties of the second part hereto,, in the sum of twenty thousand (20,000) dollars lawful money of the United States, and the further sums of money which said Eice and Gelder may have expended in carrying out the obligations hereinafter set forth to be performed by said Eice and Gelder, said sums of money to be paid to said George Arthur Eice and William Gelder, their executors, administrators, or assigns, for which payments well and truly to be made the said parties of the first part bind themselves, heirs, administrators, or assigns, firmly by these presents. Sealed with our seals, and dated, this 28th day of October, A. D. 1890. The condition of the above obligation is such that if the above-bounden parties of the first part shall on or before the said first day of May, 1891, make and execute to the parties of the second part hereto, or their assigns, and deliver the same to the American National Bank of Salt Lake, in Salt Lake City) to be held in escrow, subject to the payment of the sum of eight thousand five hundred (8,500) dollars, payable "on or before the 16th day of June, A. D. 1891, — provided the said Eice and Gelder shall have on or before the first day of November, A. D. 1890, paid to the parties of the first part the sum of five hundred (500) dollars, and on or before the 28th day of November, A. D. 1890, paid the further sum of four thousand five hundred
The plaintiffs testify that this contract was read oyer to the defendants, and they expressed their satisfaction with it, except they wanted to have it presented to their attorney before signing it, to see if it was legal and right. On the other hand, the defendants gave testimony tending to show that, when snch contract was read over, two of them expressed their disapproval of it, and desired to show it to their attorney, and, upon doing so, found and were advised that it was not a contract of purchase and sale; that it was simply an. option contract without mutuality; that it did not bind Rice and Gelder to pay anything, but did bind the defendants to convey. The defendants refused to accept the contract as the one agreed upon. Rice and Gelder did hot propose to give any other, whereupon the matter was abandoned, and thereupon this action was brought to recover the amount of commission claimed to be due the plaintiffs.
The principal question to be determined is, did the plaintiffs produce a purchaser or purchasers able, ready, and willing to purchase the property upon the terms agreed upon by the defendants and Rice and Gelder? If they did, then they were entitled to their commission, and to recover, even though the vendors refused to go on and perfect the sale, and even though they could not give a good title to the mine agreed to he sold. Phelps v. Prusch, 83 Cal. 626, 23 Pac. Rep. 1111; McGavock v. Woodlief, 20 How. 221. Plaintiffs claim, and the testimony shows, that the terms agreed upon were an absolute sale of the property for $20,000 — $500 to be paid down in cash; $4,500 on or before 30 days; $8,500 on or before 5 months; and the balance, $6,500, in June.
The contract of sale which Rice and Gelder sought to
From the proposed agreement, it is difficult to see wherein Rice and Gelder agreed to make the purchase, or wherein they became bound to purchase the mine, pay any money therefor, or do anything that would amount to a moving consideration for the promise they sought to obtain and enforce against the other party as a basis of plaintiff’s action; and while it may be true that where an owner of land gives another, for a sufficient consideration, an option or privilege to purchase the land within any given time, in writing, with full knowledge of the facts, he is bound, and the other party is not, such contract may be enforced
Supposing the contract had been signed by the parties on October 28, 1890, and immediately thereafter, before any money was paid, Rice and Gelder should have seen fit to repudiate it, would the defendants have any means left them to collect the $20,000, or any part of it, under such contract? We think not. The contract gave the purchasers power to render it absolutely void by failing to carry out its terms. All they had to do was to refuse to do the work or pay the money, and the contract was at an end. A proposal to accept, or an acceptance upon terms varying from those offered, is a rejection of the offer. Bank v. Hall, 101 U. S. 43. But it is not necessary to discuss this part of the case further. It is apparent that the contract, as embraced in the proposed agreement which Rice and Gelder sought to obtain from the defendants — and the
It is claimed, however, that on the following morning the defendants accepted the proposed written agreement as embodying the agreement previously entered into, and that they verbally agreed to its terms, and therefore the terms of sale were agreed upon, so as to justify a recovery in this action. As to what took place when the proposed agreement was submitted for the consideration of the parties on the following morning the witnesses all differ. Their testimony is conflicting and contradictory. One of the grounds set out in the motion for a new trial was the insufficiency of the evidence to justify the verdict. It does not appear on what ground the order for a new trial was granted. If it was granted on the ground of insufficiency of the evidence to justify the verdict, — as we presume it was, — it is well settled that a motion for a new trial on such ground