Scott v. Fowler

81 N.E. 34, 227 Ill. 104

• Court: Illinois Supreme Court
• Decided: April 18, 1907
• Status: Published

Opinion

Mr. Justice Carter

delivered the opinion of the court:

The chief contention of appellants is, that the correspondence set out in the declaration constituted a complete contract between the parties for the sale of the lands at a consideration of $30,000, subject to the Purnell lease. An acceptance must conform exactly to the offer, and if it contains new conditions there is no contract. (Maclay v. Harvey, 90 Ill. 525; Gradle v. Warner, 140 id. 123.) Fowler, in his first letter to Acton, refused to sign the contract as it then stood. Is it a fair construction of that letter, taken in connection with the other letters and the facts as set forth in the declaration, that he intended the agreement to be complete before the formal contract in writing was signed, provided they took the land subject to the Purnell lease? Bishop on Contracts (sec. 319) states: “If parties agree on terms, however precise, ‘subject to the preparation and approval of a formal contract,’ the concurrence of their wills is supended, and where nothing further is done there is no contract. Yet the mere fact that the reduction of an informal agreement, oral or written, to a formal written one was contemplated or stipulated for does not prevent the former from taking immediate effect. The question whether it does or not depends upon what the parties intended.” This statement of the law is in full harmony with what this court held in Baltimore and Ohio Southwestern Railroad Co. v. People, 195 Ill. 423. A valid contract undoubtedly can be made by correspondence, but as was said in Lyman v. Robinson, 14 Allen, (Mass.) 242, care should be taken not to construe as an agreement letters which the parties intended only as preliminary negotiations.

We think it is plain from the correspondence set out in the declaration that it was not the intention of either appellants or appellee to have the contract consummated by the letters alone, but that it was the intention that it should not be complete until the written contract had been formally executed by appellee and one copy returned to and received by appellants and the $1000 left on deposit with Acton had been turned over to appellee or his representative. The transaction was not a contract so long as anything remained to be done by one of the parties thereto. “The rule is necessarily universal that both must be bound or neither will be.” (Bishop on Contracts,' sec. 318.) The contract was only to be considered complete when the formal prepared agreement was signed by both parties. It is evident that the appellants did not consider themselves bound until they should receive their copy, properly signed, nor was the earnest money to be paid over to appellee until that time. This was a “condition precedent to its completion.” We have examined the authorities referred to in appellants’ briefs on this question, including 7 Am. & Eng. Ency. of Law, (2d ed.) p. 140, and its citations, and find nothing in conflict with the conclusion here reached.

Appellee’s last letter, referred to in the declaration, .in which he stated that he could not sign the contract because he had already sold the land to Taylor, could not properly be set out in the declaration on any theory advanced by appellants. That letter was a matter of evidence, and not of pleading. Had it been introduced in evidence it would not in any way change the conclusion we have reached as to the intention of appellee.

The judgment of the Appellate Court was correct, and it will accordingly be affirmed.

Judgment affirmed.