Crosbie v. Brewer , 68 Okla. 16 ( 1916 )

Inasmuch as it is clear to me that the conclusion reached by Mr. Commissioner Mathews, in the opinion prepared by him, is correct, I believe the approval thereof by the court ought not to be disturbed at this late date upon defendants' application for leave to file a second petition for rehearing.

The action of the majority of the court to the contrary, it seems to me, is predicated upon the fundamentally erroneous assumption that the lease itself, without the approval thereof by the Secretary of the Interior, constituted a completed enforeable contract between Messrs. Crosble Wrightsman, as lessees, and Brewer, guardian, as lessor. In my judgment, the transaction between these parties, in so far as it had proceeded up to the date of the withdrawal therefrom by Crosbie Wrightsman, amounted to no more than an offer on the part of Crosbie Wrightsman to lease the restricted land of an Indian minor for oil and gas purposes, provided the offer was accepted by the Secretary of the Interior by his approval of the proposed lease, pursuant to section 2 of the act of Congress of May 27, 1908, within 60 days from the date thereof. And, on the other hand, the authority of the guardian to enter into a valid lease for his Indian ward being limited by the same act of Congress, the extent of his authority was to receive such bids or offers as were made for the lease and submit them to the Secretary of the Interior for acceptance or approval. As there is no contention that this offer to enter into a lease was supported by any consideration whatever, it follows that the proponents were at liberty to withdraw therefrom at any time before its acceptance by the Secretary of the Interior, who had full power to reject the offer or accept the same.

Mr. Elliott, in his valuable work on Contracts (1 Elliott on Contracts, § 33) states the applicable rule as follows: An offer unsupported by any consideration may be withdrawn at any time before acceptance. From the few examined of the many cases supporting the text collected by the learned author in a note, I select Northeastern Construction Co. v. Town of N. Hempstead,121 App. Div. 187, 105 N.Y. Supp, 581, as an authority closely in point by analogy upon the question herein involved. In that case the plaintiffs bid on a bridge contract which was to be let by defendant's board of highway commissioners. In acting on this bid a resolution was passed that the plaintiffs be notified that their bid be accepted conditioned upon leave being granted by the board of supervisors to issue bonds of the town in the sum of $20,000. Before anything else was done plaintiffs wired that they withdrew their bid and sent a letter of explanation. In an agreed case, which involved the right of the plaintiffs to recover back their certified cheek deposited with their bid, it was held that there was no acceptance of the plaintiff's bid which would bind them, and they were entitled to a return of the deposit made when the bid was submitted.

In the case at bar, the plaintiffs made a bid for a lease on the restricted lands of an Indian minor, and the guardian received the bid and a certified check representing the cash bonus for the lease, for the purpose of having the lease accepted or approved by the Secretary of the Interior. Before anything else was done, the plaintiffs withdrew their offer. There being no consideration to support the offer to lease, the authorities certainly sustain the right of the proposed lessees to withdraw the same any time before its acceptance by the Secretary of the Interior; the rule being that until a proposal be accepted it may be withdrawn. M. H. C. Co. v. Rochester, 178 U.S. 373, 20 Sup. Ct. 957, 44 L.Ed. 1108. In the case at bar, it is true that notwithstanding the withdrawal of the offer to lease by the proposed lessees the Secretary of the Interior afterward approved the proposed lease within the time specified in the offer. But this was unavailing, for "after an offer has been legally withdrawn, there can be no acceptance such as will make a binding contract." 1 Elliot on Contracts, § 34. And from what has been said it does not follow that it is possible far a proponent to withdraw at will every offer he may make, "for if the offer is given for a certain definite time and is supported by a valuable consideration, it cannot be revoked or withdrawn during the time specified." 1 Elliott on Contracts, § 33.

For the reasons stated, I am of the opinion that the application for leave to file second petition for rehearing should be denied.