Stennett v. First National Bank , 112 Iowa 273 ( 1900 )

Waterman, J.

4 While the answers set up a contract with P. P, Johnson for the purchase of the collaterals in question, no such claim is insisted upon by defendants in argument. We do not deem it necessary to say more than that the misunderstanding as to the amount of the securities would be sufficient to deprive the transaction of that element essential to all contracts — the meeting of the minds of the parties. The first telegram from Clarke asked for a price on all collaterals held by the bank and the Investment Company. This would include the Nebraska securities, which are not claimed to have been included in the bargain as finally made or sought, tq be made. Johnson’s answer was that he would take 75 cents on the dollar. This offer was not accepted. Clarke’s next communication was an inquiry by telegraph as to whether Johnson would take $25,000 for Iowa collaterals in the possession of the defendant corporations, aggregating $34,900. Johnson’s response was by telegram and letter. He states that he will take for the $34,900 the sum of $25,587.50. The acceptance was by telegram and letter. It appears that the amount of collaterals was $32,941, and the amount due Johnson, as'figured by defendant Clarke, was $24,-123.42. Instead of an acceptance of Johnson’s offer, this was in fact a new proposition by Clarke, which, as we have seen, never came to Johnson’s knowledge, for he died before receiving it. Furthermore, if, for the purpose of argument, we consider Clarke’s telegram and letter an acceptance of the offer made by Johnson, is was not within the time fixed therefor. To constitute a contract by acceptance of an offer, the terms of the offer must be strictly complied with. Baxter v. Bishop, 65 Iowa, 582; Clay v. Ricketts, 66 Iowa, 362, Sawyer v. Brossart, 67 Iowa, 678; Gilbert v. Baxter, 71 Iowa, 327; Batie v. Allison, 77 Iowa, 313.

5 G 7 II. There having, then, been no contract with Johnson for the purchase by the defendant corporations of these securities, is there anything in the conduct of the representatives of Johnson which precludes plaintiff from asserting a right to an accounting? First, the conduct of Johnson’s heirs is relied upon as creating a bar to the relief sought. It is said that immediately after Johnson’s death his widow and his heirs, who were all adults, had knowledge of the whole transaction, and acquiesced therein. If this were true, it might well be doubted whether it would affect the rights of the administrators. The heirs could have done nothing in the matter if they had desired to enforce any claim on the part of the estate. McLeary v. Doran, 79 Iowa, 210. But we are not forced to rest our conclusion upon this ground. The undisputed facts are that only a part of the heirs had any knowledge of 'the contents of the letters and telegrams set out and the heirs who . possessed such knowledge derived it from only a portion of the correspondence. They had the letters and telegrams from defendants, but none of those sent by Johnson. Knowing only one side of the matter, it seems farfetched to say that they will be held to have had notice or knoAvledge of the legal rights of the parties. We come next to the conduct of the administrators; for, although the answer of the Investment Company sets up that two of Johnson’s notes to it were canceled and sent to him before his death, and were accepted by him, the undisputed testimony shows that the notes were mailed at Bed Oak on August 31st, and the letters reached Montgomery when Johnson was in extremis, and remained unopened until after his death, when they came into possession of the widow and a part of the heirs, who retained them. It is true that another note was canceled, and sent to and received by Seth Johnson, the principal administrator, at Montgomery, and that still another note, together with a small balance of cash, arrived at on settlement of the transaction set out in the correspondence of defendants, were delivered to plaintiff, and accepted by him. It also appears that plaintiff executed an assignment of one of the collateral mortgages to the bank. The claim is made that plaintiff, at the time he took this cash and note, had full knowledge of the rights of all parties. With relation to the conduct of Seth Johnson, we may say that ho was one of the heirs, and had only such knowledge of the matters in dispute as did the others. What we have al-

ready said as to the heirs applies here. As to plaintiff, it is asserted that after his appointment he went to defendant bank, and Clarke showed him all the correspondence, save the last two letters set out, and that, with the knowledge thus conveyed , he ratified the contract with defendants, and accepted thereafter the cash balance and canceled note. In view of all the testimony, together with the pleadings herein, wo are forced to the conclusion that the bank at this time was claiming to have a valid contract with Johnson. In the absence of the last two letters, the correspondence would tend to show this to be the fact. If plaintiff was led to believe that there was such a contract —and we think that he was induced to believe this — then his acts would not amount to a ratification. Eggleslon v. Mason, 84 Iowa, 630; Roberts v. Rumley, 58 Iowa, 301. It is true, there is evidence going to show that, prior to this, one of the heirs told plaintiff of the facts within his knowledge, and expressed the belief that there was no contract; but the facts so told were such only as we have already seen were known to the heirs. Something is claimed on account of the alleged laches of plaintiff. No one has suffered by the delay in bringing suit, nor does it appear that defendants have altered their situation because thereof. So, also, if we accept the issue of estoppel as being presented by the pleadings, we cannot regard it as established; for plaintiff was manifestly misled by defendants into acting as he did. Through their representations he was led to think there was a binding contract -with his intestate. Defendants therefore can claim nothing for the fact that he acted on this assumption. In-’ our opinion, defendants should account for the amount received for the collaterals, with interest at 6 per cent, from the date of receipt, after deducting Johnson’s indebtedness, with interest thereon up to date of payment, or to the time when funds sufficient were in hand to pay it. In making this computation, the In-A7estment Company should bo charged with the notes turned over to the bank, amounting to $1,825.05 at the time they were disposed of in this manner.

8 III. Defendants Clarke and Hayes were acting for their respective principals in this matter, and such fact was known to all concerned. There is no case against them personally, and the action should be dismissed so far as they are concerned. The case is remanded for a decree in harmony with this opinion. — Reversed.

Deemer, J., taking no part. Granger, C. J., not sitting.