Fowler v. Nunnery , 126 Miss. 510 ( 1921 )

Sykes, J.,

delivered the opinion of the court.

The appellee, A. D. Nunnery, by bill in chancery seeks the specific performance of a contract for the sale of certain lands to him by the appellant. From a decree granting this specific performance the appellant appeals.

The alleged contract is evidenced by letters between the parties. This correspondence is as follows:

“Magnolia, Miss., September 24, 1918.

“Mr. W. C. Fowler, Picayune, Miss. — Dear Sir: I am the man that D. Currie has been talking to you about buying the land you have at Chatawa.

“He informs me that you will take fifteen hundred dollars for all the land you own near Chatawa, Miss. Will you accept this price and furnish me' abstract for same.

“Kindly let me hear from yon at once, and oblige,

“Yours very truly,. A. D. Nunnery.”

“Picayune, Miss., October 2, 1918.

“A. D. Nunnery, care Meyer & Neugráss, Magnolia, Mississippi. — Dear Sir: I have your letter of the 24th ult., which was received during my absence. -1 will take fifteen hundred dollars cash for the land I own near Chatawa; this is net cash.

“I am inclosing abstract made by Price & Webb in May, 1902, which" shows that I have undisputed possession for I have had it now over sixteen years. I could sell this out in parcels and realize double what I am asking you for it. In fact, I have some negroes after me now for some of the lands. When you read over the abstract and Price & Webb’s letter of May 26,1902, please return them to me. Of course , I have sold some land since I bought this tract, as you will note, but nothing sold for several years.

“Very truly yours,

“W. C.'Fowler, Picayune, Miss.”

“Magnolia, Miss., Oct. 14, 1918.

“Mr. W. O. Fowler, Picayune, Miss. — Dear Sir: Replying to your letter of the 2d inst., I accept your property at Ohatawa, and herewith inclose deed for same, to which you will attach draft for fifteen hundred dollars and send same to the Citizens’ Savings Bank, Magnolia, Miss., for collection.

“Yours truly, A. D. Nunnery.”

“Poplarville, Miss., Oct. 17, 1918.

“A. D. Nunnery, Magnolia, Miss. — Dear Sir: I have your letter of the 14th inst., with deed inclosed and which I am holding up until such time as I am able to get home to Picayune to examine papers in connection with what I have sold out of the original Rist purchase, as I do not think I have three hundred and fourteen acres left to sell. I sold some land to some of those colored people, and it strikes me that you have nearly all the original Rist pur1 chase included in the deed. I am tied up here on account of short help and the influenza which is just now raging, and just as soon as I can I will let you hear from me.

“Very truly yours. W. C. Fowler.”

“Poplarville, Miss., Oct. 28, 1918.

“A. D. Nunnery, Magnolia, Miss. — Dear Sir: Again referring to the Chatawa property, I find on looking up the acreage that the deed you have prepared calls for more acres than is now in the tract, and since consulting my wife, who is interested, she declines to sell for price of fifteen hundred dollars and I am therefore sorry to say that the deal is off on that basis.

“Very truly yours. W. C. Fowler.”

“November 1,1918.

“Mr. W. C. Fowler, Picayune, Miss. — Dear Sir: I am in receipt of your letter of the 28th ultimo, in which you are trying to back out of your sale of land to me near Chatawa, Miss. I am very much surprised, as you made me the proposition of fifteen hundred dollars cash and I accepted same, so will ask you to please make out deed and send to Citizens’ Savings Bank here, and I will take care of same.

“Yours very truly, A. D. Nunnery.

“Poplarville, Miss., November 27, 1918.

“A. D. Nunnery, Magnolia, Miss. — Dear Sir: I duly received your letter of the 1st inst. and beg to reiterate my letter of October 28th. Mrs. Fowler, however, is agreeable to take two thousand dollars cash for what land she has to sell of the Chatawa property and if you are willing to do this the deal is on and will be held open for ten days from date hereof.

“Very truly yours,

“W. C. Fowler, Attorney, Picayune..”

About nine months after the termination of the correspondence this suit was brought. The first letter of the .appellees to the appellant was an inquiry as to whether or not the appellant would sell his lands near Chatawa for fifteen hundred dollars and furnish the appellee an abstract. To this letter the appellant stated that he would sell the land he owned near Chatáwa for fifteen hundred dollars net cash and inclosed an. abstract of the land showing that he had had possession of it for sixteen years, and requesting that the abstract be returned to him after it had been read by appellee. He stated in this letter that he had sold some lands originally contained in this tract, but nothing for several years. In reply to this letter on October 14, 1918, the appellee stated that he accepted the property and inclosed deed for the same. He further requested the appellant in this letter to' attach draft for fifteen hundred dollars to this deed and send the same to a bank at Magnolia, Miss., for collection.

It will be noted that the offer of appellant to sell was for net cash. This letter is not an unqualified acceptance of that offer. In the previous correspondence nothing is said about whose duty it is to draft the deed. The appellee,however, assumed this duty and wrote a deed. When he requested the appellant to sign it, he did not tender to him in cash the consideration, hut instructed him to draw on a bank at Magnolia, Miss. The appellant lived at Picayune; consequently this letter was not an unqualified acceptance of the offer of sale and was not accompanied by a tender in cash of the consideration therefor. To this letter the appellant replied that he would hold the papers until he could examine into the contents of the deed, as he did not think he owned three hundred and fourteen, acres of land. Eleven days later the appellant wrote appellee that on looking up the acreage as contained in the deed that it contained more land than he owned. He then withdrew the offer to sell the land owned by him for this amount.

There are several subsidiary questions presented by the appellant in the record as to why the decree of the court is erroneous, but it is only necessary for us to consider but one of them, as that is decisive of the rights of the appellee. The rule which governs in this case is thus admirably stated in the opinion of the court in the case of Welch v. Williams, 85 Miss. 301, 37, So. 561, as follows:

“The elementary general rule, as frequently enunciated in reference co the enforcement of specific performance of contracts, so far as relates to the particular branch of the subject here presented for consideration, is that the contract must be specific and distinct in its terms, plain and definite in its meaning, and must show with certainty that the minds of the parties had met and mutually agreed as to all its details upon the offer made, upon the one hand, and accepted, upon the other. If any of these requisites be lacking, specific performance will not be decreed by a court of equity.”

In this case it is shown that the deed prepared by the appellee and mailed by him to the appellant to be executed by him contained more land than was owned by appellant. The description in the deed was also erroneous in at least two particulars, the appellee took upon himself the duty of preparing this' deed, and in it he failed to describe correctly the lands owned by the appellant. He also failed to tender the fifteen hundred dollars in cash to the appellant at his home in Picayune. It may be that the appellee in attempting to correctly describe these lands was in some way misled by the abstract. The offer of the appellant was only to sell the lands owned by him. The abstract was merely to be used by the appellee as an aid in examining the'lands and determining about what was owned by the appellant. By furnishing this abstract the appellant did not agree to convey the lands appearing from the abstract as belonging to him. He specifically called attention to the fact that he had sold some of these lands. He omitted, however, to state that some of the lands had been sold for taxes. The offer to sell was silent as to the nature and character of the deed the appellant would make to the lands; that ir, whether ,a quit-claim, a special, or a general warranty deed. If the appellant had actually tendered the cash to the appellant and demanded of him a deed to whatever lands the appellant owned near Chatawa, he would have bee.n entitled to a performance of the .contract on the part of the appellant, but this he failed to do. He did not unconditionally accept the offer as made, but his so-called offer of acceptance was merely a counter proposition offering to take the land provided the appellant would execute the deed as prepared by the appellee and draw on the appellee for the money through a certain bank in Magnolia. Since the offer was not accepted according to its terms, the appellant was at liberty to withdraw it. This question has been recently discussed and the authorities cited in the case of Philp v. Dana, 121 Miss. 697, 83 So. 715.

The lower court erred in not dismissing the bill. The decree is reversed, and bill dismissed.

Reversed and dismissed.