Washburn v. Fletcher

42 Wis. 152

• Court: Wisconsin Supreme Court
• Decided: January 15, 1877
• Status: Published

Opinion

LyoN, J.

I. The issues of fact made by the answer of the defendant and the proofs, are few and easily disposed of.

1. The defendant took issue upon the averment in the complaint that Davis had assigned to Mrs. Bent his interest in the notes and mortgage given by the defendant for the $10,000 loaned to him by Davis and the plaintiffs. Such assignment was proved on the trial. Besides, the answer admits a tender to the defendant, when the deed was demanded, of “ the said notes and mortgage, with a good and sufficient release thereof, properly executed and acknowledged.” This admission renders it entirely immaterial whether Davis’ interest in the securities had been so assigned or not. It is to the effect that the release was executed by the person having authority to execute it; and it is of no importance whether such person was Davis or Mrs. Bent.

2. It is also quite immaterial to the validity of the alleged contract, whether the defendant did or did not receive the letters, or either of them, mailed to him by the plaintiff Wash-turn on the 2d of September, accepting the offer contained in defendant’s letter of August 30th. For 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. Vassar v. Camp, 11 N. Y., 441, and cases cited.

8. Tbe allegation in tbe answer that tbe defendant bad entered into an agreement witb other parties for a sale of a portion of tbe land in controversy, is without significance, because it is also therein alleged that such agreement is upon condition that be is not bound to convey tbe same lands to tbe plaintiffs. Tbe only evidence relating to this portion of tbe answer is tbe instrument signed by Bray & Choate; and that does not show, and there is no evidence in tbe case tending to prove, that tbe defendant bad made any binding contract to convey any portion of tbe land to Bray & Choate, or to any other person.

It is believed that the above observations dispose of all disputed questions of fact involved in tbe case.

II. On tbe pleadings and evidence, tbe case, stated most favorably to tbe defendant, is this: In January, 1875, defendant agreed in writitig, over bis signature, to sell to tbe plaintiffs and one Davis bis interest (being an undivided nine-sixteenths) in 8,889 acres of land in certain townships in Oconto county, described in the patent from tbe state, to be selected by them in a certain manner out of a larger quantity of land in tbe same townships, in which tbe defendant bad a like interest. The plaintiffs and Davis advanced, or loaned, to tbe defendant $10,000 at tbe same time, for tbe repayment of which, witb interest, in one year, tbe defendant gave them bis notes, secured by a mortgage on a portion of such lands.

Ib July following, tbe defendant indorsed on such agreement, and signed, a permit that such selections might be made from lands in two other townships, evidently described in the same patent, but not originally specified. Tbe plaintiffs and Davis, in due time, exercised an option which was given them in tbe contract, and declined to purchase tbe lands. This put an end to tbe contract, and left tbe defendant liable to pay, when bis notes should mature, tbe $10,000 and interest which was to apply in part payment for tbe lands bad tbe contract remained in force.

Sucb was tbe position of affairs, when, on tbe 26tb of August, 1875, tbe plaintiff Waslibwrn offered to pay tbe defendant $20,000 for tbe lands referred to in tbe contract between tbe defendant and tbe plaintiffs and Davis. Tbe defendant declined to accept this offer, but, four days later, made tbe offer contained in bis letter of August 30,1875, wbicb last offer tbe plaintiff Washburn accepted by addressing to tbe defendant two letters to that effect, one directed to bim at bis residence in Detroit, and tbe other at Boston, where be then was, and by depositing such letter, with tbe postage thereon prepaid, in the post-office at Oshkosh, on the 2d day of September, 1875.

On tbe 6th of tbe same month, tbe defendant sent a postal card to Washburn from Boston, on which be wrote: “Hope to leave by tbe 20tk; will notify you when.” , September 24th, Washburn wrote to tbe defendant at Detroit: “I wish you would notify me as soon as you are ready to close Up our land matter.” Tbe defendant returned to Detroit on tbe 23d or 24th of that month. On the 25th, be wrote to WasKbwn tbe following letter:

“Dbteoit, September 25, 1875.

G-. W. WashburN, Esq. Dear Sir: When yon were here, you suggested that you would be glad to give' me Mr. Edwards’ minutes, by my paying you my share of tbe expense. Will you please give me tbe sum I should have to pay. I am trying to sell some part of my lands, at least enough to meet my note to you, and can now take $12,000 for 2,500 acres, if I so elect; but I hope to do better, and think your minutes will aid me in tbe sale. I regret you cannot make me an offer better than tbe above one. I wish you would look the matter over carefully, and see the best you can do. Five dollars an acre is too little to take for tbe best of those lands. But tbe note must be paid at all events.

Tours truly, George N. Fletcher.”

On tbe receipt of this letter, the plaintiffs started at once for Detroit, and on tbe 29th, Washburn, who was acting and bad acted throughout for his eoplaintiff, Bent, as well as for himself, tendered to the defendant the notes and mortgage for $10,000, and a sufficient release of the mortgage, and demanded that he execute to the plaintiffs a deed then presented to him, which the plaintiffs had caused to be prepared for that purpose. Such deed was in the usual and proper form of a conveyance of lands, and, had it been executed by the defendant and his wife, would have conveyed to the plaintiffs the title in fee to an undivided nine-sixteenths of the tracts of land therein described, that is to say of 3,5i6T°w\ acres of land, equal to the whole of 1,995£ acres. Said tracts of land are the same mentioned in the agreement of January 25,1875, and in the indorsement thereon of July 14th, about three-fourths thereof being in the townships specified in the instrument as originally executed, and the remaining one-fourth being in townships 35, range 14, and 37, range 12, specified in such indorsement.

The defendant refused to execute such deed, but did not specify as a reason for such refusal that it contained descriptions of lands not included in his offer of August 30th.

III. ¥e are now to determine whether the above facts constitute a valid contract on the part of the defendant to convey to the plaintiffs the lands in controversy.

That the offer of the defendant, and the acceptance of that offer by the plaintiff Washburn, would constitute a valid contract between them, which each may enforce against the other, unless the same is rendered invalid by the statute of frauds or 'is void for uncertainty, is too clear for argument.

1. The provision of the statute of frauds by which the validity of this contract must be tested, is as follows: “ Every contract for the leasing for a longer period than one year, or for the sale, of any lands or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by tbe party by whom the lease or sale is to be made.” B. S., ch. 106, sec. 8.

This contract is in writing, and is subscribed by the party by whom the sale is to be made — that is, by the defendant. Does the writing express the consideration for the agreement?

The writing signed by the party need not expressly specify all that the statute requires. It is sufficient if it does so by reference to other writings wdiich contain the required specifications. A conveyance by a grantor, in terms, of all that parcel of land conveyed to him by a deed' executed by A. B., will, without further description, pass to the grantee the lands described in such deed of A. B., if the same be intelligibly referred to. As was said by Dixon, C. J., in Simmons v. Johnson, 14 Wis., 523, “ It is sufficient, within all of the adjudications, that the deed furnishes on its face, either directly or by reference to extrinsic facts and evidences, the means by which it can be connected with its subject matter, and the intention of the parties ascertained with reasonable certainty. If it do this, it cannot fail for uncertainty. For this purpose it is enough if it refers to other deeds or writings by which the lands granted can be identified.” And again, in Coats v. Taft, 12 id., 388, the chief justice said: “We do not understand the law to require that a deed should on its face ascertain the limits or quantity of the estate gran ted, or the particular property conveyed; but that it will be sufficient if it refers to certain known objects or things, and provides definite means by which the same may be definitely ascertained and known.” See also Benedict v. Horner, 13 id., 256.

These cases go upon the maxim, id Gertvm est quod reddi-certum potest; and, although they relate to the description of the land, are equally applicable to the expression of the consideration. It is not perceived why the doctrine of them is not applicable to an executory agreement for the conveyance of lands, as well as to an executed conveyance. Such application was made by this court to a contract of sale entered into by letters passing through the mails, in Matteson v. Scofield, 27 Wis., 671. There can be no doubt that the notes mentioned in the defendant’s offer of August 26th are those given by him for the $10,000 and interest; and in the light of the above cases we have no difficulty in holding that the contract expresses the consideration thereof. The offer of the defendant became, by acceptance, a contract to convey a specified quantity of land for a specific price, to wit, $10,000 and the accrued interest from the date of notes given therefor. In legal effect the consideration is as well stated as in Matteson v. Scofield, supra. "We think the contract fulfills the requirements of the statute of frauds.

2. Is the contract sufficiently certain in its designation of the lands to be conveyed ? Many of the foregoing observations on the last proposition apply equally to this question, and need not be repeated. In the proposal of August 30th, the words of the defendant are: “I cannot sell at your offer.” "What was the offer referred to ? The pleadings answer the question. It was an offer by the plaintiff Washburn, made four days previously, to purchase and pay $20,000 for the lands referred to in the original contract. The defendant then proceeds to say: “ But I am in a strait, as I see no way to pay my note this fall, and, in order to do it, I will sell enough at the contract price to pay it, or I will give 2000 acres for my notes, you to select in eighty-acre lots. Any thing to pay my indebtedness.” It is substantially admitted in the answer, that the indebtedness and note here mentioned are the $10,000 loan and the securities given therefor; and there is no room to doubt that the proposal to sell enough to pay the same, referred to a sale of a portion of the lands for which Washbu/rn had recently offered the defendant $20,000 — that is to say, of the lands mentioned in the patent from the state to the defendant.

The offer of the defendant, which was accepted by the plaintiff Washbu/rn, is in the alternative. It is to sell enough at the contract price, whicb was six dollars per acre, to pay the debt, or to convey 2000 acres, to be selected by the purchaser in eighty-acre lots, in payment of such debt. This would be at the rate of less than six dollars, or about five dollars and twenty cents per acre. The offer was accepted, and hence, the contract was made in that form. We suppose a contract in that form is valid.

If A. and B. enter into a contract in proper form, by which A. agrees to sell and B. to purchase either lot one or lot two, owned by A., at a specified price for the one or the other, and the contract gives B. the right to select the lot to be conveyed, no good reason is perceived why this is not a valid contract, even before the selection is made, and why B. may not select his lot in due time and enforce a conveyance thereof in a court of equity, pursuant to the contract. It seems to us that the same principle is applicable to this case, and that, although the contract is in the alternative, when the selection was made pursuant to the contract^ and the defendant notified thereof, he was legally bound to execute a conveyance of the selected lands, provided the selection was made in a reasonable time and within the limits specified in the contract.

We are satisfied from the evidence that the selection was made, and the defendant notified thereof, within a reasonable time after his offer was accepted. Indeed, the proofs show very great diligence on the part of the plaintiffs in those respects. Whether any of the lands selected are not included in the contract, will be considered hereafter.

It is earnestly argued by the learned counsel for the defendant, that the contract is fatally defective for uncertainty in that the defendant does not therein agree to convey any specified tracts or parcels of land.

It is true, the specific tracts of land which the plaintiffs seek to compel the defendant to convey to them, are not described in the contract, or in any writing referred to therein. But the contract does provide for the conveyance of a certain number of acres out of a larger quantity; or rather, perhaps, it provides for the sale of a number of tracts which are not specifically designated, out of a larger number of tracts which are so designated. It does, however, definitely provide means by which the tracts to be conveyed may be ascertained. Ey its terms, the same are to be ascertained by the selection of the purchasers, and, as already observed, the lands were so selected before the conveyance thereof was demanded. This is sufficient,within the rule of the cases above cited.

"We conclude that there is no such uncertainty in the terms, or the description of the subject matter, of the contract, as will prevent a court of equity from adjudging that it be specifically performed.

IV. As already stated, about one-fourth of the lands selected under the contract and described in the deed tendered to the defendant for execution, are situated in the two townships specified in the defendant’s indorsement of July 14th on the agreement of January 25th, and which are not specified in the original agreement. It is claimed that these lands are not included in the contract for the specific enforcement of which this action is prosecuted; and hence, that the defendant is under no obligation to convey them.

It may be that there is an ambiguity in the terms of the contact in this respect. The defendant may have intended by his offer of August 30th to confine the right of selection to the townships mentioned in the original agreement, or he may have intended to extend it to the additional townships mentioned in the indorsement of July 14th. The language employed is probably consistent with either intention. The fact (if it be a fact) that the defendant was not legally bound by the indorsement, seems to throw no light on the question of intention, and we find nothing in the testimony which aids in its solution.

But the agreement of January 25th and the indorsement of July 14th, taten together, constitute the form at least of a contract between the parties thereto; and we apprehend that, ordinarily, either ^party, when referring to the contract after snch indorsement, would have in his mind the contract which the two writings together were supposed to express. Hence, in the absence of testimony on the subject, we think it must be held that the contract gives the right of selection from all the townships mentioned both in the original agreement and in the indorsement thereon.

Moreover, if the contract is ambiguous in that respect, we think the defendant should have informed the plaintiffs, when the deed was tendered for execution, that he did not intend to give them the right to select in the additional townships, and that therefore the deed included lands which he had not agreed to convey. That would have enabled the plaintiffs to select other lands in place of those which the defendant thus denied his obligation to convey, and they would have been entitled to a reasonable time for that purpose. Failing to make the objection at that time, it is doubtful whether a court of equity should, under the circumstances of the case, listen to it after-wards. But, without deciding whether the defendant has or has not' waived his right to urge that objection, we hold the true construction of the contract to be (in the absence of proof to the contrary), that it gave the purchaser the right to select from all the townships named in both instruments.

Y. The contract which is sought to be enforced, is, in form, between the defendant and the plaintiff TPhs/iJ-wm, and, in the deed tendered the defendant for execution, both plaintiffs are named as grantees. This fact is immaterial. Washbwrn was acting for himself and his coplaintiff, Bent, throughout the whole transaction; and it is settled that the latter is entitled to the benefit of any contract which Washburn made in his behalf, although it may not have been disclosed to the defendant that Bent had any such interest therein. Stowell v. Eldred, 39 Wis., 614, is conclusive upon this point.

It is believed that the foregoing observations dispose of all tbe alleged errors relied upon to reverse tbe judgment of tbe circuit court. Failing to find any material error in tbe rulings and decision of tbat court, we must affirm tbe judgment.

By the Gowet. — Judgment affirmed.

Tbe appellant asked for a rebearing upon tbe question, whether be should be compelled to convey to tbe plaintiffs any lands not described in tbe contract of January 25, 1875, as it stood before tbe indorsement of July 14, 1875. Sis counsel contended, 1. Tbat there was no evidence in tbe case tbat appellant was tbe owner of all tbe lands mentioned in the deed tendered by tbe plaintiffs, and which tbe decree herein requires him to convey to them. 2. Tbat it was alleged in tbe answer arid appeared by tbe evidence, that tbe appellant was not aware, until this action was commenced, that tbe lands selected by plaintiffs and described in tbe deed tendered to him included lands described in tbe indorsement but not in the original contract.

Counsel for tbe respondents contended in reply, 1. Tbat in a suit for a specific performance of a contract to convey land, it is not necessary to allege or prove ownership in tbe vendor; but, if tbe vendor does not own tbe land, tbat is matter of defense. 2. Tbat tbe construction given by the court to defendant’s offer in respect to tbe lands to which it applied, is clearly correct; and tbat tbe defendant cannot now be allowed to object tbat some of tbe lands described in tbe deed tendered by plaintiffs were not included in bis offer, after having failed to take tbat objection at tbe time of such tender, since tbat would operate as a fraud upon tbe plaintiffs.

The motion for a rehearing was denied.