160 Iowa 745 | Iowa | 1913
The ease made by the plaintiff is substantially as follows: Plaintiff being the owner of a quarter section of land in North Dakota and a house and lot in Waverly, Iowa, and the defendant F. E. McStay being the owner of certain other real estate in Waterloo, Iowa, said parties under date of January 25, 1911, at said city of Waterloo, entered into a written agreement for the exchange or mutual transfer of said properties on terms therein named, subject, however, to the following stipulations:
The party of the second part is to have thirty days from date in which to examine the properties described above as being owned by first party, and this contract is not to become binding upon said second party until the expiration of said thirty days unless such time is waived by said party. At the end of thirty days this contract is to become binding upon said second party unless he sooner notifies first party, in writing, of his intention to abandon and cancel the same. In case this contract becomes binding upon both parties hereto in the manner above stated, then said parties are each to deliver to the other good and sufficient warranty deeds to their respective properties, and abstracts of title to the same showing clear*747 and merchantable title thereto, except, of course, the mortgages above referred to, which are liens against the North Dakota property conveyed by first party and the Waterloo property conveyed by second party. Deeds and abstracts to be exchanged within a reasonable time after this contract becomes binding on both parties hereto.
The making of the alleged agreement is conceded, but the defendant contends that, within the time stipulated, he notified the plaintiff, in writing, of his election to abandon the deal, and that 'no enforceable contract was ever completed between them. The defendant as a witness testifies that late in the evening of February 24, 1911, at Waterloo, Iowa, he wrote a letter to the plaintiff informing him of his intention to abandon the contract, which letter he addressed to plaintiff at Waverly, Iowa, the place of his residence, and, having duly sealed and stamped the same, deposited it in a street or hotel letter box provided for such purposes by the United States. The letter itself, being produced, appears to bear the date of February 24, 1911, but the postmark stamped thereon is dated February 25, 9 a. m., 1911, while the Waverly postmark shows its receipt at that office February 25, 11:30 a. m., 1911. It was actually received by the plaintiff about three o’clock p. m. of the 25th. Upon the facts thus briefly stated, the trial court found plaintiff not entitled to the relief asked.
The first and principal question presented by the record is whether the defendant signified his election to abandon the contract in such time and in such manner as to relieve himself from obligation to perform the same. It appears that, while the terms of the exchange were agreed upon and reduced to writing, the defendant was given thirty days in which to examine and satisfy himself as to the Dakota property, with the option on his part to withdraw from the transaction at any time within thirty days from the date of the writing. As expressed by the instrument itself, it was not to become binding upon the defendant “until the expiration of said thirty
The cases distinctly in point are not very numerous, but they are sufficient to show that the distinction between cases of this character and those where the question at issue is an acceptance of an offer of purchase or sale has received judicial recognition. See Burham v. Corey, 17 Mich. 282, in which it is held that a person entitled to notice, where .there is no stipulation or consent for its delivery by mail or other specially named means, is not bound by such notice until it is actually received. So also it has been held in Vermont that one who has undertaken to give notice within a specified number of days does not comply with his obligation by depositing notice in the post office at the close of the last day of the stipulated period, too late to be forwarded or delivered within the time named. Field v. Mann, 42 Vt. 68. This authority is quite in point upon the facts in the case at bar. A similar holding is to be found in Society v. Reed, 42 Vt. 76. In Association v. Schauss, 148 Ill. 304 (35 N. E. 747), the court, speaking with reference to a contract requirement of notice, coupled with a provision that “notice sent to the last address given shall be considered legal notification,” says: “As there is no provision in the Constitution to the effect that the service of notice shall date from the time of mailing, it can only date from the time of its actual receipt by the member to whom it is addressed, or at least until sufficient time has elapsed to enable it to reach him in due course of mail.” Upon the same subject it is said by the Massachusetts court that: “Ordinarily when the demand must be made or notice given merely posting the document or notice in the mail would not be a communication to the person addressed and would be ineffectual unless the same be received.” Shea v. Association, 160 Mass. 289 (35 N. E. 855, 39 Am. St. Rep. 475). Any other rule would be unreasonable and productive of frequent unjust results. It follows that we must hold that there was a clear failure on the part of the defendant
For the reasons stated, the decree below must be reversed, and the cause remanded for the entry of a decree in accordance with the views here expressed. — Reversed.
I am unable to agree with the foregoing opinion. The-contract gave defendant “thirty days” to satisfy himself as to the Dakota property. The effect of the majority opinion is to make the time for such purpose a little less than thirty days. The opinion rests its full weight upon the word “sooner,” -and makes it of the very essence of the contract.
I think the interpretation of the contract adopted by the trial court is the more reasonable and natural one. The word “sooner” can be adapted thereto without excessive strain upon its meaning. 'If this be not so then the contract is repugnant in its provisions at this point. Such repugnance is a sufficient reason why specific performance should be refused and the status quo be maintained. I would affirm.