Haas v. Myers , 111 Ill. 421 ( 1884 )

Mr. Justice Sheldon

delivered the opinion of the Court:

It is insisted upon on the part of the appellant, that the partnership here claimed was actually formed; that if there was not a literal there was a substantial performance by Haas of the conditions of the contract; that he did all that he could, — telegraphed, as he had agreed, his acceptance,— and could do no more until action by Myers; that not putting up his share of the money in the manner provided, was because of the failure of Myers to advise him by telegram of the amount necessary; that the telegraphic acceptance sent by Haas, although not received, had all the legal effect it could have had if it had been received by Myers. In support of this last proposition the rule governing the negotiation of contracts by correspondence through the mail is appealed to, and it is contended the same rule applies in the negotiation of a contract by telegraph, — that rule being, that where parties undertake to contract by letter, and one party makes a proposal by letter, and the other by letter accepts and posts his acceptance, the minds of the parties have met, and from the instant of mailing the acceptance the contract is a valid and binding ue. See Household Fire Ins. Co. v. Grant, L. R. 4 Exch. Di-v. 2.^u; Taylor v. Merchants’ Fire Ins. Co. 9 How. 390; Mactier v. Frith, 6 Wend. 103; Hallock v. Insurance Co. 2 Dutch. 268; Minnesota Oil Co. v. Collier Lead Co. 4 Dill. 431; Abbott v. Shepard, 48 N. H. 14; Trevor v. Wood, 36 N. Y. 307; Pomeroy on Contracts, 95, and cases there cited. Although there be contrary authority that a contract made by mutual letters is not complete until the letter accepting the offer has been received by the person making the offer, (see Leivis v. Browning, 130 Mass. 175,) we regard the weight of authority to be in favor of the rule as first above stated. A distinction has been taken, that though in general such a contract takes effect from the time of acceptance, and not from the subsequent notification of it, yet the offerer may not be bound by the fact that the letter of acceptance had been put in the post-office, if the letter never reached its destination. The preponderance of authority does not appear to sustain this distinction, but to hold that the mailing of the letter of acceptance completes the contract, whether the letter reaches its destination or not. In the above cases, in 4 Dill, and 36 N. Y., it was held that the same rule applied in the case of •correspondence by telegraph as in the case of correspondence through the mail. Whether the rule does so fully apply in the former case we do not find it necessary now to determine, as, conceding that it does, we do not consider that the rule has application to the facts of the present case. We think that under the arrangement entered into between the parties, the formation of the contract was made dependent upon the actual communication by telegraph, to Myers, of Haas’ acceptance. This is not the case of an offer made, and where the simple acceptance completes the contract between the parties. Haas’ reply, if it had reached Myers, was not the conclusion of the bargain. Considerable remained to be done afterward, on both sides. Myers, after receipt of the dispatch, was to telegraph again, giving the amount to be deposited. Haas was to depo'' ms amount. The bank was then to telegraph the credit to Myers, so as to make it available for the purchase of the cattle.

We think, too, the terms of the contract imply that Haas’ answer that he would take a third interest, should actually reach Myers, and within a very short time, or the contract would not be binding. A large purchase was involved, requiring the payment of a considerable amount of money. Promptness was necessary, and it was important that Haas should furnish his share of the purchase money necessary to complete the purchase. It was uncertain whether the cattle would be purchased by Myers, and if so, whether Haas yrould ■want a third interest in them at the price they could be purchased for. It was therefore arranged that if Myers purchased, he should telegraph Haas the price per head, and if Haas wanted a third interest at the price, he should, immediately after receiving Myers’ dispatch, answer back, by telegraph, “Yes” or “No.” If the answer was “yes,” then Myers would immediately inform Haas, by telegraph, of the amount of money that would be required to be placed j the credit of A. Myers & Bro. at the First National. Bank in Chicago, in order to secure a third interest in the purchase of the cattle.. Now, Haas never did advise Myers, by telegraph, that he would take an interest. No such telegram ever came to Billings, — the place of destination. Manifestly, delivering the message containing an affirmative reply to the telegraph office for transmission, did not answer the purpose. Myers could not act upon that mere delivery. He must have knowledge. Haas was to telegraph, and if the answer was “yes, ” Myers was to telegraph back the amount of money required; but he could not telegraph back what was the amount of money needed until he was informed of Haas’ desire to take a third interest, — until he had received the telegram “yes.” This shows that it was in the contemplation of the parties that this telegram should not merely have been.. deposited for transmission, but that it should have been transmitted and been received before there could arise between the parties any completed contract. It was essential that notification of Haas’ desire,to ha,ve a part in the purchase should have come to Myers, to enable him to inform Haas of the amount of money needed from him, and so enable Haas to perform on/ his part by furnishing his share of the purchase money.

But further,' within an hour after depositing in the telegraph office, for transmission, his telegram of acceptance,— “yes, ” — Haas sends this misleading dispatch: “If Murphy cattle are good, there is no danger in buying them,” — and this telegram was received by Myers October 2, and was the only one received by him, or that ever came to Billings in answer to his inquiry if Haas wanted an interest in the purchase. What was Myers to understand from this ? If Haas wanted an interest in the cattle, the telegram agreed upon between him and Myers by which he should signify that wish, was the word “yes.” This was not such a telegram, and it did not express any idea that Haas wanted or would take an ínteres ‘n the cattle. It stated merely that upon a certain hypothesis, — if the Murphy cattle are good, — there is no danger in buying them. We think that Myers was justified in taking this dispatch sent by Haas, as an abandonment of all interest in the contract, or at least as denoting a want of consent on Haas’ part to take an interest in the cattle, and a want of intention of completing the proposed contract in furnishing a part of the purchase money, and that Myers could not place further reliance thereon, but might well proceed in the completion of the purchase from Murphy, by raising himself, and with the assistance of Martin, the whole amount of the $15,000 required to be paid on that day to Murphy, and claim the purchase as being his own, to the exclusion of Haas from any share in it. This second telegraphic dispatch did not come within any arrangement made between Haas and Myers, but was Haas’ own independent, voluntary act, and he alone is to blame for its misleading effect. The $15,000 which was to have been paid on moving the cattle from the ranch, Murphy was insisting must be paid on October 2, or that he would refund the $5000 paid, and declare the trade “ off, ” — that he would not wait any longer. Myers and Martin, after receipt of that dispatch, raised the money on that day, and paid it. To be sure, Haas appeared in person at Billings the next day, and offered to perform. This, we think, was too late. It would not be a substantial performance. It was essential that he should have performed before; that he should have contributed his share to the payment of the purchase money that was paid to Murphythat he could not, after leading Myers to think that he did not want an interest in the purchase, and the latter and Martin raising and paying all the purchase money required, come in afterward, though only the next day, and then offer to pay his share of the money, and demand the right of participation in the purchase. To have then admitted Haas into the purchase would have been but a matter of favor with Myers— not of• obligation.

We think the decree dissolving the injunction and dismissing the bill was right, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.