CARPENTER, District Judge
(after stating the facts as above). [ 1 ] The determination of this case depends entirely upon the construction to be given to the defendant’s letter of March 14, 1914, and the plaintiff’s reply, posted at Madison, Wis., on March 21, 1914, the date when he received the defendant’s letter. If there was a contract made, it was consummated hy the mailing of the letter by plaintiff at Madison, Wis., properly addressed to the defendant at Pasadena, Cal.
“Dor it is well settled, in England and this country, that' when a proposal for a contract is made by letter, sent by mail, the deposit of a letter of acceptance in the'post office by the person to whom the proposal is made, addressed to the person making it, at the proper place, completes the contract, even though the latter never receives the letter accepting his offer.” Washburn v. Fletcher, 42 Wis. 152, 166.
[2, 3] The execution of the contract and its construction must be determined by the laws of the place where the contract, if any, was made. McFarlane v. Wadhams (C. C.) 165 Fed. 987; Liverpool, etc., v. Insurance Co., 129 U. S. 397, 458, 9 Sup. Ct. 469, 32 L. Ed. 788; Berget-Crittenden Co. v. Railway Co., 159 Wis. 256, 261, 150 N. W. 496.
[4] The law of the state of Wisconsin with reference to offers and acceptances by mail is well summarized in Curtis L. & L. Co. v. Interior L. Co., 137 Wis. 341, 118 N. W. 853, 129 Am. St. Rep. 1068:
“ffihe vendee in his letter of acceptance may not attach any condition to such acceptance, even to the extent of undertaking to dictate the place where payment shall be made. If his attempted acceptance is coupled with any condition that varies or adds to the offer to sell, it is not an acceptance, but is in reality a counter proposition. N. W. Iron Co. v. Meade, supra [21 Wis. 474, 94 Am. Dec. 557]; Baker v. Holt, supra [56 Wis. 100, 14 N. W. 8]. Where the letter of acceptance contains a mere suggestion or request that payment be made at a particular place, but such a request is not a condition attached to the acceptance, it does not amount to an attempt to vary the terms of the offer to sell, and will not defeat an action for specific performance. Matteson v. Scofield, 27 Wis. 671; Kreutzer v. Lynch, 122 Wis. 474, 100 N. W. 887. Applying these principles of law to the errors under consideration, the case does not present any unusual difficulties.”
The Wisconsin cases cited by counsel for the defendant are Baker v. Holt, 56 Wis. 100, 14 N. W. 8, N. W. Iron Co. v. Meade, 21 Wis. 474, 94 Am. Dec. 557, Clark v. Burr, 85 Wis. 649, 55 N. W. 401, and Russell v. Falls Mfg. Co., 106 Wis. 329, 82 N. W. 134.
In the first two of these cases the letter of acceptance changed the place of payment from the vendor’s domicile to a different place many miles away. In the Clark Case it asked for a deduction of nearly one-half the purchase price, and in the Russell Case there were three material modifications. .
[519]*519Oilier Wisconsin cases, in winch, under somewhat similar conditions, the letter of acceptance has been held to contain a mere suggestion, and not a variation in the terms, are the following: Matteson v. Scofield, 27 Wis. 671; Sherley v. Peehl, 84 Wis. 46, 54 N. W. 267; Kreutzer v. Lynch, 122 Wis. 474, 100 N. W. 887; Curtis L. & L. Co. v. Interior L. & L. Co., 137 Wis. 341, 118 N. W. 853, 129 Am. St. Rep. 1068.
[5] In the Kreutzer Case, numerous Wisconsin decisions were referred to in the opinion, and we find this summary:
“Kadi of tlie letters so considered was marked by some slight differentiation from that in the present case; tout these varying views of court at least serve to establish that such a letter is not necessarily clear or certain in it s significance, but may contain a measure of ambiguity. In both Matteson v. Scofield and Baker v. Holt it is held that such ambiguity might be resolved by extrinsic facts surrounding the transaction and by the conduct of the parties. In the present case there was evidence of conversation between the parties which might have served as an invitation to Mr. Kreutzer to suggest a method of closing the transaction by mail — the defendant Lynch having suggested to him that that might be done. Again, correspondence between and conduct of the parties after the sending of the letter of June 17th was offered as significant upon the meaning of this letter and the understanding of it by Mr. Lynch. Upon this evidence the trial court has found that the request for transmission of the decid and abstract to a bank at Wausau was intended by Mr. Kreutzer and was understood by the defendants simply as a suggestion and request, and not as a condition of acceptance. There being extrinsic evidence admissible upon this subject, with no clear and overwhelming' preponderance to the contrary, the finding of the court must conclude us on this question.”
Defendant charges that the letter of acceptance contained an important variation, in that it required the defendant to appoint an attorney or agent of the plaintiff’s own choosing to receive the money and to dose the transaction. The agent named was J. W. Hobbins, cashier of the Capital City Bank of Madison, Wis. The original notes were payable at the bank, and plaintiff paid his interest there and part of the principal as it fell due.
Under the rule laid down in the Kreutzer Case, extrinsic evidence is admissible to clear up the question whether or not the letter in question contained a condition or merely a suggestion. The facts surrounding the transaction and the conduct of the parties make, it clear that Netherwood’s letter contains simply a suggestion, and not a condition. All of the notes were “on or before,” and could have been paid by Nefherwood at any time, had he desired to go to the Capital City Bank and deposit the money. The record shows that J. W. Hobbins was the president and cashier of this particular bank; that the notes were in the possession of the bank, and all payments of interest, and the two payments of principal on these notes had been made to Hobbins at the bank; that he was the active managing officer of the Capital City Bank, and when payments were made of principal or interest he personally indorsed them on the notes in the presence of Netherwood. The indorsements show that those payments ran over a period of years; the first being August 5, 1911, and the last March 7, 1914. Hobbins was not connected in any way with the Democrat Printing Company, or in any way with the stockholders [520]*520of the company. The Democrat Company carried their account at the Capital City Bank, and the defendant Raymer had a checking account at the same bank; it being his working bank account, so far as. he had one in Wisconsin. He also had one in California. The notes in question, when they were foreclosed on by Brandenberg, were sold at the Capital City Bank, and the transaction tire defendant had with Brandenberg was also consummated through the Capital City Bank. The cash which the plaintiff had raised to consummate the purchase from the defendant was in the Capital City Bank, and he was ready, able, and willing to carry out his part of the contract.
It is plain that the plaintiff in his letter of acceptance named J. W.
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CARPENTER, District Judge
(after stating the facts as above). [ 1 ] The determination of this case depends entirely upon the construction to be given to the defendant’s letter of March 14, 1914, and the plaintiff’s reply, posted at Madison, Wis., on March 21, 1914, the date when he received the defendant’s letter. If there was a contract made, it was consummated hy the mailing of the letter by plaintiff at Madison, Wis., properly addressed to the defendant at Pasadena, Cal.
“Dor it is well settled, in England and this country, that' when a proposal for a contract is made by letter, sent by mail, the deposit of a letter of acceptance in the'post office by the person to whom the proposal is made, addressed to the person making it, at the proper place, completes the contract, even though the latter never receives the letter accepting his offer.” Washburn v. Fletcher, 42 Wis. 152, 166.
[2, 3] The execution of the contract and its construction must be determined by the laws of the place where the contract, if any, was made. McFarlane v. Wadhams (C. C.) 165 Fed. 987; Liverpool, etc., v. Insurance Co., 129 U. S. 397, 458, 9 Sup. Ct. 469, 32 L. Ed. 788; Berget-Crittenden Co. v. Railway Co., 159 Wis. 256, 261, 150 N. W. 496.
[4] The law of the state of Wisconsin with reference to offers and acceptances by mail is well summarized in Curtis L. & L. Co. v. Interior L. Co., 137 Wis. 341, 118 N. W. 853, 129 Am. St. Rep. 1068:
“ffihe vendee in his letter of acceptance may not attach any condition to such acceptance, even to the extent of undertaking to dictate the place where payment shall be made. If his attempted acceptance is coupled with any condition that varies or adds to the offer to sell, it is not an acceptance, but is in reality a counter proposition. N. W. Iron Co. v. Meade, supra [21 Wis. 474, 94 Am. Dec. 557]; Baker v. Holt, supra [56 Wis. 100, 14 N. W. 8]. Where the letter of acceptance contains a mere suggestion or request that payment be made at a particular place, but such a request is not a condition attached to the acceptance, it does not amount to an attempt to vary the terms of the offer to sell, and will not defeat an action for specific performance. Matteson v. Scofield, 27 Wis. 671; Kreutzer v. Lynch, 122 Wis. 474, 100 N. W. 887. Applying these principles of law to the errors under consideration, the case does not present any unusual difficulties.”
The Wisconsin cases cited by counsel for the defendant are Baker v. Holt, 56 Wis. 100, 14 N. W. 8, N. W. Iron Co. v. Meade, 21 Wis. 474, 94 Am. Dec. 557, Clark v. Burr, 85 Wis. 649, 55 N. W. 401, and Russell v. Falls Mfg. Co., 106 Wis. 329, 82 N. W. 134.
In the first two of these cases the letter of acceptance changed the place of payment from the vendor’s domicile to a different place many miles away. In the Clark Case it asked for a deduction of nearly one-half the purchase price, and in the Russell Case there were three material modifications. .
[519]*519Oilier Wisconsin cases, in winch, under somewhat similar conditions, the letter of acceptance has been held to contain a mere suggestion, and not a variation in the terms, are the following: Matteson v. Scofield, 27 Wis. 671; Sherley v. Peehl, 84 Wis. 46, 54 N. W. 267; Kreutzer v. Lynch, 122 Wis. 474, 100 N. W. 887; Curtis L. & L. Co. v. Interior L. & L. Co., 137 Wis. 341, 118 N. W. 853, 129 Am. St. Rep. 1068.
[5] In the Kreutzer Case, numerous Wisconsin decisions were referred to in the opinion, and we find this summary:
“Kadi of tlie letters so considered was marked by some slight differentiation from that in the present case; tout these varying views of court at least serve to establish that such a letter is not necessarily clear or certain in it s significance, but may contain a measure of ambiguity. In both Matteson v. Scofield and Baker v. Holt it is held that such ambiguity might be resolved by extrinsic facts surrounding the transaction and by the conduct of the parties. In the present case there was evidence of conversation between the parties which might have served as an invitation to Mr. Kreutzer to suggest a method of closing the transaction by mail — the defendant Lynch having suggested to him that that might be done. Again, correspondence between and conduct of the parties after the sending of the letter of June 17th was offered as significant upon the meaning of this letter and the understanding of it by Mr. Lynch. Upon this evidence the trial court has found that the request for transmission of the decid and abstract to a bank at Wausau was intended by Mr. Kreutzer and was understood by the defendants simply as a suggestion and request, and not as a condition of acceptance. There being extrinsic evidence admissible upon this subject, with no clear and overwhelming' preponderance to the contrary, the finding of the court must conclude us on this question.”
Defendant charges that the letter of acceptance contained an important variation, in that it required the defendant to appoint an attorney or agent of the plaintiff’s own choosing to receive the money and to dose the transaction. The agent named was J. W. Hobbins, cashier of the Capital City Bank of Madison, Wis. The original notes were payable at the bank, and plaintiff paid his interest there and part of the principal as it fell due.
Under the rule laid down in the Kreutzer Case, extrinsic evidence is admissible to clear up the question whether or not the letter in question contained a condition or merely a suggestion. The facts surrounding the transaction and the conduct of the parties make, it clear that Netherwood’s letter contains simply a suggestion, and not a condition. All of the notes were “on or before,” and could have been paid by Nefherwood at any time, had he desired to go to the Capital City Bank and deposit the money. The record shows that J. W. Hobbins was the president and cashier of this particular bank; that the notes were in the possession of the bank, and all payments of interest, and the two payments of principal on these notes had been made to Hobbins at the bank; that he was the active managing officer of the Capital City Bank, and when payments were made of principal or interest he personally indorsed them on the notes in the presence of Netherwood. The indorsements show that those payments ran over a period of years; the first being August 5, 1911, and the last March 7, 1914. Hobbins was not connected in any way with the Democrat Printing Company, or in any way with the stockholders [520]*520of the company. The Democrat Company carried their account at the Capital City Bank, and the defendant Raymer had a checking account at the same bank; it being his working bank account, so far as. he had one in Wisconsin. He also had one in California. The notes in question, when they were foreclosed on by Brandenberg, were sold at the Capital City Bank, and the transaction tire defendant had with Brandenberg was also consummated through the Capital City Bank. The cash which the plaintiff had raised to consummate the purchase from the defendant was in the Capital City Bank, and he was ready, able, and willing to carry out his part of the contract.
It is plain that the plaintiff in his letter of acceptance named J. W. Hobbins simply as a suggestion, for the purpose of aiding in the immediate winding up of the transaction. It appears from the record that all parties in interest had the utmost confidence in Hobbins; that he personally had taken charge of all the dealings with regard to these notes from the time of their execution, and he naturally was the one man at the bank who would have closed the transaction, had the name of the bank been inserted in the power of attorney, instead of his name. Raymer had been dissatisfied for some time with the conduct of affairs in the publishing company, and was extremely anxious to get his money, or the major part of it. He had manifested anxiety for some time, and had committed himself on this’ point in writing. His letter containing the offer of sale shows that his anxiety was acute, and this anxiety the plaintiff was trying to relieve, when he wrote back, on the same day that he received the offer, accepting it and suggesting Mr. Hobbins, “so that you get your money without any delay.”
The importunity on the part of the aged defendant to close out this-transaction and to get as much of his money as possible at the earliest daté was ■ further evidenced by the manner in which he accepted Bandenberg’s offer immediately on its presentation March 20th. This was before he had heard from Netherwood. He states:
“After a few minutes of conversation, Mr. Brandenberg said he had come out to see if I would sell him JSfetherwood’s notes. I quickly answered that I would.”
The reasons for the defendant’s anxiety are clearly shown in his communication. Raymer, when he' received the plaintiff’s letter of March 21st, would have understood that his proposition was accepted, and that only the details of consummating the agreement remained to be disposed of. The suggestion of Hobbins seems to me to be an attempt on the part of the plaintiff to save time, so that he could comply with the very evident desire of the defendant to get his $52,200 at once.
It should be particularly noticed that the failure of the defendant to carry out his contract with Netherwood was not due to any claim on his part that he had any objection to executing the power of attorney to Mr. Hobbins. Without waiting for an answer to his offer, without leaving enough time in which an answer could possibly be received, and before his offer was received, he sold these notes to Brandenberg on exactly the same terms as contemplated in his offer [521]*521to Netherwood. The Brandenberg transaction would have been carried out under Netherwood’s letter of acceptance, with the exception that the indorsement, “Without recourse, George W. Raymer,” was put on the Netherwood notes at the Capital City Bank under a general power .of attorney held by Jones & Schubring, instead of the specific power of attorney to J. W. Hobbins inclosed in Netherwood’s acceptance.
Under all the circumstances, I am of the opinion that the naming of Hobbins as the attorney in fact was in expedition of the sale rather than a condition of acceptance or counter offer.
I am not impressed with the argument that the three propositions were for Netherwood’s sole benefit, and that no one else could be interested with him in the transaction, because Raymer’s letter refers to a statement of tile plaintiff that he would have no trouble “negotiating a new loan or sale of the stock for more than the unpaid notes.”
[6] It is also charged that there is a variance in that the acceptance did not comprehend $52,200 principal and also the interest to date of sale. I fail to see that interest was a part of the defendant’s offer. In addition to the above extract Raymer also stated:
“I will agree to surrender all your notes for a surrender of the stock, and I would gladly sell it again at once for the sum of $52,200 cash.”
The Interest was paid up to a very recent date, and the amount then outstanding was so small in proportion to the total amount involved that I do not believe the question of interest was considered by the defendant. It evidently was not mentioned by him as a part of his offer.
_ The other objections raised by the defendant do not have any particular significance in this situation.
An order will be entered, finding the issues in favor of the plaintiff, and assessing his damages at the sum of $5,800 and interest thereon from March 28, 1914.
Judgment will be entered on the finding; exceptions being preserved by the defendant.