McGinnis v. Enslow , 140 W. Va. 99 ( 1954 )

Given, President,

dissenting:

Since the majority opinion concedes that appellee is not a bona fide purchaser for value, in that he had not paid the agreed purchase price at the time he acquired knowledge of the rights of appellants, this dissent goes only to the question of whether there was created a valid agreement between Mrs. Enslow and the Foster Foundation. It is my view that there was a valid offer made by Mrs. Enslow, and that the offer was duly accepted by the Foster Foundation before any rights of appellee accrued. The majority concedes, as I understand the opinion, that the judgment should be for appellants if, in fact, there were an offer and an acceptance.

In her written application for admission to the Home, dated November 4, 1951, Mrs. Enslow stated: I “* * * hereby make application to be admitted as a resident of the Foster Memorial Home”, and “for this purpose” gave detailed statements as to her age, health, relatives and properties. She agreed that “If admitted as a resident of Foster Memorial Home, I agree to obey all its rules and regulations, as the same are or shall be prescribed from time to time”. She further agreed to assign and convey her property to the Foster Foundation if admitted thereto, the “assignment and transfer to take effect on my admission to the said Home”. She also stated in the application that “I am able to pay the admission fee and will pay the same on my admission”. At the time of execution and delivery of the application both parties understood that Mrs. Enslow could not be then accepted by the Foster Foundation, for the reason there was no available room at the Home, and that the application could not be finally acted upon until room in the Home became available. When received by the Foster Foundation, the application was indorsed “Put on waiting List at Meeting of 11/15/51”.

Subsequently, vacancies occurred at the Home and, on April 10, 1952, the Board of Directors of the Foster Foundation acted on the application of Mrs. Enslow and made record of the action in this language: “Since there have been 3 deaths this year so far the Board voted to notify Miss Osgood of Ceredo and Mrs. Enslow of Huntington that .they be admitted to the Home subject to the regulations pertaining to such admittance.” Mrs. Enslow was duly notified of the action and later went to the Home and was examined by the physician of the Home, who found her to be “in very good condition”. Though Mrs. Enslow returned to her home for the purpose of making necessary arrangements, it appears never to have been doubted by either her or the Foster Foundation that she had been accepted and admitted as a resident of the Home. Mr. Bryan, who had served as Secretary-Treasurer of the Foster Foundation for approximately eight years, was asked the following question, to which he made the following answer: “Q. Did you tell her [Mrs. Enslow] then that her application had been approved and that she was admitted? A. Yes, sir”. It is conceded that Mrs. Enslow, pursuant to the application and its acceptance, became and remains a resident of the Home.

From these facts it seems clear and certain that Mrs. Enslow, in the written application, offered to convey to the Foster Foundation the property involved and described in the application, for the consideration that that institution would admit her to the Home, according to the “rules and regulations, as the same are or shall be prescribed from time to time”. It appears just as clear and certain that the offer was accepted by the Foster Foundation without any reservations or qualifications, other than such as were provided by the “rules and regulations”. The parties so understood the transaction, and acted in accordance with that understanding. As soon as room was available in the Home, the application was favorably acted on by the Board of Directors, Mrs. Enslow was notified, went to the Home, submitted to the physical examination required by the rules and regulations, became a resident of the Home, and remains a resident thereof. Thus, on the acceptance, a valid and enforceable contract was brought into existence. See Conservative Life Insurance Co. v. National Exchange Bank of Wheeling, 118 W. Va. 44, 188 S. E. 755; Morgan-Gardner Electric Co. v. Beelick Knob Coal Co., 91 W. Va. 347, 112 S. E. 587; Wood & Brooks Co. v. Hewit Lumber Co., 89 W. Va. 254, 109 S. E. 242, 19 A. L. R. 467; Hallauer v. Fire Association of Philadelphia, 83 W. Va. 401, 98 S. E. 441; Parks v. Morris, Layfield & Co., 63 W. Va. 51, 59 S. E. 753; Shrewsbury v. Tufts, 41 W. Va. 212, 23 S. E. 692; 4 M. J., Contracts, Section 17, et seq.

As above noticed, Mrs. Enslow agreed in the offer that “this conveyance, assignment and transfer to take effect on my admission to the said Home”. I see no reasonable basis for construing this language to mean that Mrs. Enslow must finally and physically be an occupant of the Home before acceptance could be accomplished. To give the language that meaning would seemingly place the sole power of acceptance in the offeror, a situation, at the least, most unusual. But even so, it is clear that Mrs. Enslow was physically in the Home, pursuant to the acceptance, prior to the accrual of any rights of appellee.

It is further contended that certain matters or rights of the offeror and offeree were not made sufficiently definite by the offer and acceptance, such as the admittance fee, or interest on any sum of money turned over to the Foster Foundation by Mrs. Enslow. But such matters were governed by the “rules and regulations” of the Foster Foundation, which rules and regulations Mrs. Enslow expressly recognized and agreed to abide by in the application. Whatever rights or liabilities might accrue as to Mrs. Enslow or the Foundation because of failure to comply with any such rules or regulations, subsequent to acceptance, could have no weight in determining whether an acceptance had, in fact, been made. Neither am I as certain as the Court seems to be that the Foster Foundation would not have been entitled to equitable relief, had Mrs. Enslow, without fault on the part of the Foster Foundation, refused to perform the contract. It should be remembered here, however, that any problematical equities arising between Mrs. Enslow and the Foster Foundation, because of violations of the contract by either party, can not affect the equities of third parties, the grantee of the Foster Foundation, or the grantee of Mrs. Enslow. Neither does the fact that the Foster Foundation could not have forced Mrs. Enslow to reside at the Home have any bearing on the sufficiency of the offer and acceptance. See Wood v. Snodgrass, 116 W. Va. 538, 182 S. E. 286.

.. In its true perspective, the contract resulting from the offer and acceptance is simply a contract for support and maintenance. For certain considerations, including the property involved, the Foster Foundation became bound to support Mrs. Enslow for the remainder of her life, at the Home provided and operated by the Foundation. Numerous cases of this Court hold such contracts enforceable. See Auvil v. Shaffer, 74 W. Va. 301, 81 S. E. 1054; McCartney v. Bolyard, 22 W. Va. 641; 12 C. J. S., Cancellation of Instruments, Section 30. The rights of parties to such contracts are governed by the same tests and rules that govern the rights of parties under other contracts. Such contracts are often attacked on such grounds as want or failure of consideration, or refusal of one of the parties to perform, but those questions have nothing to do with the creation or existence of a contract. Therefore, it is believed that any question relating to the rights of the parties to have specific performance, as discussed in the majority opinion, can have no bearing on whether a contract was created in the instant case. Specific performance, of necessity, presupposes the existence of a valid contract.

Being of the view that the application of Mrs. Enslow constituted a valid offer, that the Foster Foundation accepted the offer without reservation and that the parties immediately, and at all times, treated the offer and acceptance as a valid contract, I respectfully dissent. I am authorized to say that Judge Lovins concurs in the views expressed in this dissent. We would reverse the final decree of the trial court.