Bowen v. Hart

101 F. 376, 41 C.C.A. 390, 1900 U.S. App. LEXIS 4412

Opinion

SHELBY, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

The claim asserted and sued on is a contract, and the evidence offered to sustain it is the correspondence between the plaintiff and the defendant’s testator. It is claimed that the correspondence entitles the plaintiff to one-third of certain lands, or the value of them for services rendered by the plaintiff under the contract in clearing up the titles to the lands. It is alleged that “the plaintiff is now entitled to the possession of an undivided one-third interest” in the lands. It is further alleged that “having demanded possession of the lands and been refused by the defendant,” the- said contract was broken, * * -*• whereby the defendant becomes obligated to pay your petitioner one-third of the reasonable market value of said lands.” The petitioner, therefore, prays' for $30,631.66, which is the alleged value of the plaintiff’s'“Bowen’s ■§” of the lands. The action is at law. It is not a suit in equity for specific performance or for partition; but it is an action for a breach of contract. The petition contains no count or claim on an account for work and labor or for services. The right to recover is based in the plaintiff’s pleadings entirely on the averment of a contract and the breach of it. It follows, we think, as a necessary consequence of the issue raised by the pleadings and evidence, that, if there wras no contract as averred, there could be no breach of it, and therefore no recovery. A valid contract may be made by correspondence; but, in ascertaining whether the letters between the parties constitute a contract, we must have in view the same principles that are applicable to contracts in other cases. There must be a meeting of two minds in one and the same intention. In the absence of this element, there can be no contract. To .constitute a contract, therefore, by letters between the parties, a definite proposition must be made by one party and an absolute and unconditional acceptance of it by the other party. 7 Am. & Eng. Enc. Law (2d Ed.) p. 129, note 3; Clark, Cont. § 19. Bowen in his letter to Hart, of October 1, 1888, proposes that he should be compensated for his services in reference to the titles to the lands in one of two wrays: He offers to take one-third of the land, Hart to pay expenses; or, if Hart prefers all expenses advanced, “can charge to me, and when work is completed I can take one-half of the land in settlement, or I to get credit for expenses advanced, and take one-third of the land and a fair compensation be allowed me separately for mercantile services.” If Hart had replied accepting the terms offered without specifying which of the propositions was accepted, it could not be said that the parties had reached an agreement; but Hart made no such answer. In his answer of November 3, 1888. he merely acknowledged receipt of the letter, and hoped that the “trip will prove pleasant and profitable.” On November 11, 1888, Bowen writes to Hart that, as he does not comment “upon compensation mentioned in my letter of October 30th, 1888, I presume terms mentioned by me are satisfactory.” Then Hart writes on November 16, 1888: “Don’t get restless. Go ahead and get all our lands clear, and, after all entanglements are removed, satisfactory settlement will be made.. Perhaps your ideas are not too high. Whilst attending to lands, don’t forget to sell goods where you can spare time.” Instead of agreeing to either one of the two propositions made by Bowen in his letter of October 30, 1888, Hart by his letter of November 16, 1888, declines to agree on the compensation, saying that after entanglements are removed satisfactory settlement will be made. The correspondence distinctly shows that the minds of the parties did not meet. This correspondence did not make a contract. Eliason v. Henshaw, 4 Wheat. 225, 4 L. Ed. 556; Companía Bilbaina de Navegacion de Bilbao v. Spanish-American Light & Power Co., 146 U. S. 483, 497; 13 Sup. Ct. 142, 36 L. Ed. 1054; Minneapolis & St. L. Ry. v. Columbus Rolling-Mill Co., 119 U. S. 149, 7 Sup. Ct. 168, 30 L. Ed. 376; Insurance Co. v. Young’s Adm’r, 23 Wall. 85, 107, 23 L. Ed. 152. We think the court correctly charged the jury that there was not that meeting of the minds of the writers of these letters which was necessary to make a contract as to the compensation that Bowen was to receive. This view of the case is conclusive, for the plaintiff was not entitled to recover for the breach of a contract that had no existence. The judgment of the circuit court is affirmed.

MAXEY, District Judge, dissents.