Wenham v. Switzer

HAWLEY, District Judge, (after stating the facts.) It will readily be seen from the facts that the proofs made do not correspond with the allegations of the bill to the effect that respondent agreed to purchase the Burner lode for the joint benefit of the parties. Eespondent was the owner of an undivided one-half interest of the Burner lode claim at the time of the commencement of the correspondence between the parties in relation thereto, and the negotiations had reference only to the purchase of the other undivided one-half interest. But, notwithstanding this variance between the pleadings and the proofs, we shall consider the case upon its merits. What was the contract, if any was made, between the parties? Are any facts shown that entitle appellant to a decree? The voluntary offer or suggestion of respondent, which constitutes the basis or origin of any agreement between the parties, is contained in the first letter, informing appellant that respondent knew of an interest in a mine (not naming it) which he thought could be bought, for $1,500, and wanted to know if appellant knew of any friend that would like to buy it. Subsequently, in March, respondent suggests that appellant would do well to secure the interest mentioned in the former letter. Appellant replied, expressing a desire to obtain the interest, and wished to know if it could be bought, for $1,000. Then comes the reply that the interest could not be had for less than $1,500, if it could be bought for any price, with the suggestion that, if appellant should conclude to take the interest, he had better send $1,500, because, if delay was made, the interest might slip into olher hands. Instead of sending this amount of money, appellant sent a draft for $500, and suggested to respondent that he should give the owner, when he agreed to sell, the $500 to bind the bargain, and then telegraph for the other $1,000; and upon the receipt of this letter the respondent said that, as soon as the party could be heard from, the matter would be concluded. This, in substance, was the extent of the negotiations prior to the time respondent purchased the property. There was no contract created by any or all of the letters up to this time. The minds of the parties had never met upon any mutual understanding as to the price which was to be paid for the undivided one-half interest in (he Burner lode. The respondent had stated that it could not be bought for less than $1,500, but he never stated that it could be bought for that sum. Eespondent had never agreed to advance any money to appellant in making the purchase. On the other hand, he informed appellant that, if he wished to buy, he had better send $1,500. This suggestion was answered by sending only $500, with authority for respondent to telegraph for $1,000 more, and, if he could not buy the interest for that, to buy half of it, without stating what sum should be given for the half. If, up to this time, any contract could be inferred, it would only be to purchase the undivided one-half interest in the Burner lode for $1,500. Appellant had never authorized the respondent to pay any more. The minds of the parties had never mutually come together *946 on any other proposition. The parties had never assented to the same thing, in the same sense, in.any other way or manner. If respondent paid more than $1,500 for the interest, he could not, under any agreement or contract then existing between the parties, have compelled appellant to pay more than $1,500, and it would have been optional upon the part of appellant to take the interest, or refuse to take it, if any greater sum had been paid. Respondent had never agreed to advance any money to make the purchase. He had $500 of appellant’s money that could be applied for the purchase of the interest, and he was only authorized to telegraph for $1,000 more. If he paid more, the purchase would be on his own account. Unless both parties were bound by the contract, it could not be enforced in a court of equity. “To entitle a party to specific performance, there must not only be a valid and binding agreement, but, as a rule, the contract, at the time it was entered into, must have been capable of being enforced by either of the parties against the other.” Wat. Spec. Perf. Cont. § 196; Bish. Cont. § 78. There was no contract, agency, or trust created by the acts or conduct of the parties prior to the purchase which would bind both parties, unless the purchase was made for $1,500. Is it not equally clear that there was no binding contract made between the parties after the purchase of the interest by the respondent? The letter of respondent of June 5, 1888, contains the .first and only direct offer that was made. This letter is clear, plain, positive, and certain in all of its proposals, terms, and conditions. It is open, frank, and friendly. There is nothing ambiguous, equivocal, or evasive about it. It is easily understood, and it called for a direct and positive answer. It was a voluntary offer on the part of respondent to convey to appellant an undivided one-half interest in the Burner lode for the sum of $2,000, with a statement of about what the other expenses in doing necessary work and procuring a patent would be. Respondent had in his hands $500 of appellant’s money. This letter gave to appellant an option to purchase the interest by accepting respondent’s offer, and sending $1,500 to complete his part of the purchase money. “Now, friend Wenham, send me fifteen hundred dollars, and I will make you a deed of one undivided half of the entire Burner property.” This was the offer that was made. In order to avail himself of this offer, the law, in the absence of any specified agreement as to time, would require appellant to send the money within a reasonable time. This was not done. There could be no acceptance of the offer without sending the $1,500. This was the consideration upon which the offer was made. The offer was made by letter sent by mail. It was duly received by appellant. No answer was made to it for a period of 10 months, and then the offer was not directly accepted, and the conditions of the offer were not complied with. The letters of the appellant written on the 6th of April and 20th of May, 1889, ignore any reference to the offer that was made by respondent in his letter of June 5, 1888. The language of these let *947 ters, in the light of the previous correspondence of the parties, is very remarkable, equivocal, ambiguous, and. uncertain. “Not having heard from you since some time last April or May.” This was certainly a mistake, for appellant admitted upon the trial that he had received respondent’s letter of June 5th. “I have felt as though you had neglected my last letter, written some time in the early part of June last.” What letter? Was it the one about loaning the $500 belonging to appellant, in the hands of respondent, to C. G. Frost? Or is it the one which appellant testified as having written in reply to respondent’s letter of June 5th, asking for plats and specifications? Then appellant inclosed a check for $1,000, and said: “Please let me know how much you figured the balance to be.” Did not appellant know just how much money was required to be sent, if he accepted respondent’s offer, to obtain the deed for an undivided one-half interest in the Burner lode? There is no statement even that he accepted the offer or asked for further time to pay the money. There is no pretense that respondent, for or without a consideration, ever promised or agreed to extend the time for the payment of the money. There is no claim that respondent made any misrepresentation, or that he was guilty of any fraud in the premises. The evidence fails, in every essential particular, to support the allegations of the bill. No case is made out that would justify a court of equity to compel respondent to execute the deed as prayed for. The rule is fundamental that a party seeking the remedy of specific performance must show himself to have been “ready,. desirous, prompt, and eager” to comply with'the contract on his part. 3 Pom. Eq. Jur. § 1408, and authorities there cited; Penn v. McCullough, (Md.) 24 Atl. 424 . If appellant was ready, anxious, and desirous of availing himself of the voluntary offer of respondent, he should have been eager and prompt to perform his part by sending the money — $1,500—upon tin? receipt of respondent’s letter. In Mix v. Balduc, 78 Ill. 215 , the court held that, where the purchaser of land delays offering payment of the purchase money for five' months after the stipulated time for payment, without any excuse therefor, his right to call for a specific performance will be thereby precluded, unless the stipulated time for payment has been waived. Specific performance of a contract is not a matter of absolute right, but rests entirely in sound judicial discretion, to he exercised according to the settled principles of equity with reference to the facts of each particular case. The facts in this case fail to show-any consideration for the contract. Appellant was lacking in the exercise of good faith, and did not comply with the offer made to him with reasonable diligence. There is no clear and satisfactory evidence of any such acceptance or compliance with the terms of respondent’s voluntary offer, or of the existence of any agency, trust, or contract between the parties, as would justify a court; of equity in granting a decree of specific performance. Colson v. Thompson, 2 Wheat. 336 ; Purcell v. Miner, 4 Wall. 513, 519 ; Williams v. Morris, 95 U. S. 456 ; Hennessey v. Woolworth, 128 U. S. 438 , 9 Sup. Ct. 109; Walcott v. Watson, 53 Fed. 429 ; Evans v. Lee, 12 Nev. *948 399 ; Agard v. Valencia, 39 Cal. 301 ; Magee v. McManus, 70 Cal. 553 , 12 Pac. 451 ; Strange v. Crowley, 91 Mo. 287 , 2 S. W. 421 ; Durant v. Comegys, (Idaho,) 28 Pac. 425 ; 1 Chit. Cont. 11; Bish. Cont. § 327; 1 Story, Eq. Jur. §§ 764, 767; Wat. Spec. Perf. §§ 135, 138, 186, 196; 3 Pom. Eq. Jur. § 1405; 5 Lawson, Rights, Rem. & Pr. § 2607. The judgment of the circuit court is affirmed, with costs.