Slater v. Howie

Oontbaot — Specific Performance, not Adjudged. One who purchases real estate for $1,750, but couples the tender of that amount for the property with the condition that the vendors convey the property to him by deed setting forth a consideration of $2,250 therefor, is not, in an action to enforce the contract, entitled to judgment of specific performance.

Error from Leavenworth District Court. Action by Slater against Howie and wife for specific performance of a contract to convey certain land. On a judgment for defendants, February 2, 1889, plaintiff brings error. The three telegrams and letter admitted to have been written by Mrs. Howie constituted a contract of sale between these parties for this property. And subsequent conditions attempted to be imposed by Mr. Howie were absolutely impotent to annul, vary or alter the conditions of this contract. That he requested Covert to make out a deed and send it to him for signature, is of no moment whatever. The court further finds that, on the 19th day of September, 1886, plaintiff filled out a blank deed, putting in it a consideration of $2,250, and that Covert forwarded it to Howie, at Georgetown, for his signature. That he did so is immaterial; it did not relieve Mr. Howie and his wife from executing a deed to that property. The amount of consideration mentioned in the deed, whether greater or less than the amount to be paid for the land, is immaterial. If Mr. Howie did not want to sign a deed expressing that consideration, all he had to do was to erase it, and insert $1,750 in lieu of $2,250, or make out his own deed and secure the signature of his wife to it, as it was his moral and legal duty to do. There is no finding that the plaintiff ever refused to accept any deed that might be offered him, whether the consideration be great or small. There is no finding that Howie and his wife ever offered any deed of any kind to Slater. The court further finds, that the receipt of that blank deed by Howie was the first notice he had of who the purchaser of the property was to be. The court further finds, that the deed was not executed by Howie or his wife. There is no finding of any offer of Mrs. Howie or her husband to execute a deed to the plaintiff for the $1,750, but only to execute it in consideration of $2,250. The court found as its second conclusion of law, that “ the defendants never having agreed to convey said property by a deed mentioning a consideration of $2,250 upon the receipt of the sum of $1,750 as the consideration, the minds of the contracting parties never came together so as to constitute a contract.” In regard to this conclusion of law, we have this to say: This action is not brought for the purpose of enforcing the specific performance of a contract for the sale of these lots at $2,250; there is no claim that any contract of that kind has ever been made. The claim is, and the contract shown by the telegrams and the letter is, for the sale of this property at $1,750. On that subject, for the sale of the property at that price, the minds of the contracting parties did meet, and there was a contract. It is considered on our part that this contract was made for the sale of the property for $1,750. The defendants attempted to get $2,250; that there was no contract for the sale of the property at that price is true. We did not ask the court that question, but. the admitted facts in the pleadings and the findings of fact by the court show that there was a contract for $1,750; and that is what we are asking the court to enforce. Was the second telegram from Covert an acceptance of such proposition? It is claimed that it was. It had the words “sold on terms stated.” Had it stopped there, and had Mr. Covert disclosed the buyer, it might have been considered an absolute acceptance and a contract. But it did not stop there. It contained the additional words, “Send authority and papers.” What papers? the deed? Hardly so, as the name of the proposed buyer had not yet been disclosed, and by the offer the deed was to be delivered in Georgetown, where payment was to be made. It was not to be delivered at Atchison or elsewhere. And no other papers had been mentioned in the proposal and claimed acceptance. What authority was required by such telegram, in the terms “send authority?” Not to make a deed — that was to be made in Colorado. Was it authority to receive the money ? Certainly not. That was to be paid to Mrs. Howie at her home. It was intended to be for some purpose, and presumably the authority desired was to enable some person at Atchison to make the deed or to receive the money, or both, and such pretended acceptance was therefore not absolute, but upon the condition added by the plaintiff, that the papers should be executed and the money paid at Atchison, by some person to be authorized by Mr. Howie for such purpose. The case of Gremawalt v. Estes, 40 Kas. 418, is directly in point, and clearly discusses and decides that the money was to be paid and the transaction to be closed at the place from which the offer was made, and also decides that such a modification as changed the place of proposed payment or the place of the proposed delivery of the deed was not an acceptance of the proposition. On receipt of such last-mentioned telegram, however, Mr. Howie, did not accept, but on the following day wired the plaintiff’s agent in effect to “ make out deed and forward to me immediately. Mrs. Howie can sign there; money to be delivered to her.”’ This was adding still other conditions, that plaintiff should make out the deed, and pay the money to Mrs. Howie at Atchison. But this proposition was not accepted. The court finds that the only tender of money was to pay Mrs. Howie $1,750, which was made October 5,1886, but on conditions that she with her husband would execute a deed reciting a consideration of $2,250. This was certainly not a payment of money in cash at Georgetown, nor was the pay-meat immediate, nor upon the execution of a deed reciting a •consideration of $1,750, with usual covenants of warranty. It cannot then be said that the minds of these parties ever •came together so as to constitute a contract, and under such pleadings and findings the plaintiff did not make out a cause ■of action against the defendants, and the latter would therefore be entitled to judgment. In addition to the case already cited, see N. I. C. v. Meade, "21 "Wis. 480; Baker v. Holt, 57 id. 100. See, also, Frye v. Platt, 32 Kas. 65, 66; 1 Par. Contr., p. 476; 1 Benj. Sales, •p. 53; 1 Am. & Eng. Encyc. of Law, 372; Krutz v. Fisher, 8 Kas. 90; Fisher v. Krutz, 9 id. 501; Fish v. Leser,d> 9 111. ■394, 400; Mayer v. Hanchett, 39 Wis. 419; same case, 43 id. .248; Bell v. McConnell, 37 Ohio St. 396, 399.