Neel v. Lang , 236 Mass. 61 ( 1920 )

Carroll, J.

The plaintiff, a resident of New Jersey, wrote her sister, Gertrude A. Smith, at Harwich, “Tell Mrs. Brewer I would sell Sunnywood ¡[certain real estate in Harwich owned by the plaintiff]] for $6,000.00.” Mrs. Brewer is the mother of the defendant Maude B. Lang. There was evidence that Miss Smith informed Mrs. Lang of this offer, and she replied, “I will tell mother;” and that later she gave Miss Smith a check for $500 “to clinch the bargain.” A deed reciting the consideration to be one dollar and other valuable considerations, was prepared and sent to the plaintiff, and after being signed by her was returned to Miss Smith. On November 22, 1918, Miss Smith, Mrs. Lang and the defendants’ attorney met at the registry of deeds in Barnstable. Three one dollar stamps were affixed to the deed by the attorney; they were cancelled by Miss Smith and the deed was delivered to Mrs. Lang. Afterwards Miss Smith gave Mrs. Lang a memorandum of sale reciting that the price was $6,000.

On November 25, the defendant Howard W. Lang wrote Miss Smith saying that Mrs. Lang had shown him the memorandum of sale and that it caused him much surprise, as he understood the price was $3,000; that fearing he had made an error, he talked with Mrs. Brewer and she understood the price was $3,000. To this letter Miss Smith replied, denying that $3,000 was the price and asserting that the only proposal ever made was for $6,000; she offered to return the $500 and asked for a reconveyance of the property. There was testimony by the defendants that the price named was $3,000. The judge of the Superior Court found that Miss Smith was authorized to sell the real estate for $6,000 and at no other figure; that she understood this offer was accepted; that she did not know “a dollar stamp was required for each $1,000 of consideration,” and that “through some lapse of memory, or misunderstanding . . . [the defendants believed] the price was in fact $3,000.”

If the plaintiff offered to sell the real estate for $6,000 and this offer was misunderstood by the defendants, they supposing the price to be $3,000, and under this misunderstanding the deed was executed and delivered, then the parties did not assent to the same contract. There was no completed contract; it had no real existence, and the plaintiff is entitled to relief. “It is an elementary principle of the law of contracts that, if one party thinks he is buying one thing and the other party thinks he is selling another thing, there is no meeting of minds on the subject matter of the sale. When there is no agreement as to the identity of the subject matter of the contract there can be no contract.” Dzuris v. Pierce, 216 Mass. 132, 135. This principle is applicable in the case at bar. Estey Organ Co. v. Lehman, 132 Wis. 144. Wilkinson v. Williamson, 76 Ala. 163. Rovegno v. Defferari, 40 Cal. 459. Rupley v. Daggett, 74 Ill. 351. Rowland v. New York, New Haven, & Hartford Railroad, 61 Conn. 103.

The defendants contend that an error in the price to be paid is not such a misunderstanding concerning the subject matter of the contract as will prevent the mutual assent of the parties. The price for which the premises were to be sold was a matter of substance and was a material element of the agreement. Rovegno v. Defferari, supra. Rupley v. Daggett, supra. In Hecht v. Batcheller, 147 Mass. 335, relied on by the defendants, the plaintiffs and the defendants believed the makers of a note sold were solvent, whereas they were in fact insolvent. It was held that there was no mistake about the identity of the note, as it was the same note which was bought and sold; that the misapprehension affected, not its identity but its value, and that a mistake as to the value or quality or other collateral attributes, would not prevent the plaintiffs from recovering. In the case at bar there was no misunderstanding relative merely to the value or quality or other attributes of the property. There was an entire absence of any agreement. The only offer the plaintiff made was to sell at $6,000; it was not accepted and the misunderstanding of the defendants that the price was $3,000 prevented the mutual assent necessary to the contract.

There was no negligence of the plaintiff to justify the defendants in supposing that she assented to the sale for the consideration of $3,000. The judge found that she was not responsible for the defendants’ misunderstanding and that there was no negligence on her part. Her agent and the defendants were neighbors and were on terms of friendly intimacy. The advice of the defendant Howard W. Lang had been sought by her on business matters. On his advice she discharged the attorney who drew the deed and who was acting for her. The defendants’ attorney was present when the deed was delivered. He provided the stamps and affixed them to the deed. Miss Smith was not at this time asked concerning the consideration and she did not know what revenue stamps were necessary; and the only price mentioned by her, at which her sister would sell, was $6,000. On these facts it could not be ruled that as matter of law the plaintiff was guilty of such negligence as to preclude her from the relief sought. Shapira v. Wildey Savings Bank, 213 Mass. 498. Arnold v. Teel, 182 Mass. 1.

The defendants requested rulings based on the assumption that the plaintiff was bound by the act of her agent in delivering her deed* for the purpose of completing the transaction. As the agent was not responsible for the defendants’ error regarding the price for which the property was offered for sale, it is unnecessary to discuss the question of the extent of her power or whether the plaintiff would be bound if the agent did, in fact, go beyond her authority. See Lovett, Hart & Phipps Co. v. Sullivan, 189 Mass. 535.

The defendants claimed that the consideration as shown by the stamps affixed was $3,000, and requested the judge to rule that the delivery of the deed created a binding contract. So far as the plaintiff’s right to relief is concerned, under the circumstances shown the affixing and cancellation of the revenue stamps did not preclude her from relief. They were affixed by the defendants’ attorney, and Miss Smith relied on him. Although she paid for the stamps as directed, she was not told that a dollar stamp was required for each $1,000 of consideration, and was ignorant of the fact. The requests based on this incident were refused rightly. On the question of the effect of failure to attach revenue stamps to a written instrument, see Rowe v. Bowman, 183 Mass. 488.

A decree directing a reconveyance with costs was properly ordered.

Exceptions overruled.