Ackerman v. Maddux

Bruce, J.

(after stating the facts as above). Defendants first seek to defeat the action of plaintiff by showing that after the execution of the real estate contract, plaintiff sold the premises in question to the defendant Maddux, and that thereby all rights under the contract were waived. We find, however, no support for this contention in the evidence. All we find, indeed, is an offer to sell which was not accepted according to its terms, and wbicb was therefore a nullity. The offer to sell was contained in the following letter:

Williston, N. D., Sept. 5, 1910.

Mr. C. J. Maddux,

New Rockford, N. Dak.

Dear Friend, Mr. Maddux:—

I want to sell them lots that you sold me. I am mighty hard up for money and if I could sell them back to you I would do so at a great discount. I have seven lots besides the four you sold me and I have to borrow money here to pay the taxes on them, and they are not bringing-in anything and I need every dollar I made here this year to live on. I had in a little over 60 acres in crop. I have threshed and I have not any more than I seed, feed and other expenses from the whole crop.

The other lots I got is enough for me and this place. I will sell the four you sold me to you only for half price, $300. I will take $230 cash and you keep the balance of $65 or $70 dollars which I owe you. I will sell them anyway, and I want to sell them to you.

I kindly wish you would send me a statement of how we stand as the way it is in it worry me considerable. I want to straighten it up as soon as possible.

If I could sell them I would immediately build me a better house, and buy me a cow and live like a white man, and as I will have feed and seed it would put me in better shape for next year.

Let me know by return mail.

Tours very truly,

Fred Ackerman, Williston, N. Dak.

This letter was dated September 5, 1910, and was received by the defendant Maddux on September 6 or 7, 1910. On September 9, 1910, the defendant Maddux wrote a letter accepting the offer. It will be noticed that by its terms the offer demanded an acceptance by return mail, and there is no pretense that such was forthcoming. There was therefore no acceptance, and the offer is eliminated in law from the record and is as if it had never been made.. That this is the settled law there can, we believe, be no controversy. In the case of Maclay v. Har vey, 90 Ill. 525, 32 Am. Rep. 35, one John Harvey wrote to a Miss Maclay as follows: “I write to inquire if you intend to work at millinery this season and if you have made any arrangements or not. If you have not, can you take charge of my stock this season, and if you can agree I would want you for a permanent trimmer. Please notify me by return mail and terms and we can confer together.” To this letter an answer was sent stating terms. On March 21st Harvey again wrote: “Your favor was received in due time, and contents noted. You spoke of wages at $15 per week and fare one way. ... I will give you $15 per week, and pay your fare from Chicago to Monmouth, and pay you the above wages for your actual time here in the house at that rate per season. I presume that the wholesale men will allow you for your time in the house. You ivill confer a favor by giving me your answer by return mail.” This letter was received on the afternoon of March 22d, and an acceptance was written on a postal card on the following day, March 23d. The card, however, was given to a boy to mail, who delayed in the matter so that it was not received until two days after March 25th. The court, in holding that there was no acceptance and therefore no contract, said: “ ‘Where an individual makes an offer by post stipulating for, or by the nature of the business having the right to expect, an answer by return of post, the offer can only endure for a limited time, and the making of it is accompanied by an implied stipulation that the answer shall be sent by return of post. If that implied stipulation is not satisfied, the person making the offer is released from it.’ . . . It is clear here that the nature of the business demanded a prompt answer; and the words, ‘You will confer a favor by giving me your answer by return mail/ do in effect stipulate for an answer by return mail.” This case follows the leading English case of Dunlop v. Higgins, 1 H. L. Cas. 387, 12 Jur. 295, and is supported by the great weight of authority both in England and in America. See 35 Cyc. 52, 53, and notes; Eliason v. Henshaw, 4 Wheat. 225, 4 L. ed. 556.

We next come to the question as to whether specific performance will lie in this case, and this also involves the question whether the court erred in refusing to permit the filing of the amended answer, which set up the nonpayment of the taxes and sought to declare the contract void on account thereof. Counsel argues in his brief that there is no offer in the complaint to pay for improvements. lie also asks the question: “Can a condition sale purchaser remove a building from the property, and fail to pay the taxes for four years, and then prevail in an action for specific performance ?” On an examination of the record, however, we find no evidence of the removal of any building by the plaintiff, or of the making of any permanent improvements by the defendant. Defendant, it is true, testifies that he plowed and cultivated the lots, but we have yet to learn that plowing and cultivating town or village lots constitutes a permanent improvement. As far as the removal of the building is concerned, the only evidence to be found in the record is that “at the time of the sale of the lots by C. J. Maddux to the plaintiff there was a building, a storehouse, on said lots, worth and of the value of $100, and that said building, since the sale thereof, has been removed from said lots.” The- evidence shows that on or about September 9, 1910, the defendant, C. J. Maddux, himself went into possession of said premises and plowed and broke the same. There is no evidence as to who removed the building, and as to when it was removed, and whether since or before the occupation by the defendant Maddux. So, too, the value of the plowing and cultivating, even if it were a permanent improvement, is not given.

A point is also made that the tender of $71 was 12 cents short, also that the deposit of $31 for taxes did not include a few days’ interest which would accrue from the time of the payment by Maddux to the time of the deposit. The rule of de minimis non curat lex applies in such cases. Kullman v. Greenebaum, 92 Cal. 405, 27 Am. St. Rep. 150, 28 Pac. 674. So, too, there is no evidence that these tenders were refused because of the shortage, or that the matter was considered at all. There is no testimony as to any refusal to accept the $31 taxes. As far as the $71 is concerned, the refusal was unqualified. The tes- ’ timony of Mr. Maddux is as follows: “Q. At the time Exhibit O, the tender of $71, was made to you, you made no statement or any objection or reason why you did not accept that at that time ? A. No, but I refused to do it.” The defendants cannot now take advantage of the trifling shortages, if any there were. Sec. 5260, Rev. Codes 1905; Latimer v. Capay Valley Land Co. 137 Cal. 286, 70 Pac. 82 (construing § 1501, Civil Code of California, from which § 5260, Rev. Codes 1905, N. D. is taken); Kofoed v. Gordon, 122 Cal. 314, 54 Pac. 1115; Cleveland v. Rothwell, 54 App. Div. 14, 66 N. Y. Supp. 241.

As far as tbe refusal to permit tbe filing of the amended answer is concerned, we think that no prejudicial error was committed by the trial court. The plaintiff deposited in the trial court the sum paid by the defendant Maddux, perhaps lacking a few cents of interest. The payment of taxes was not, by the contract, made a condition precedent to the right of the plaintiff to a specific performance or to rely upon the contract, and it is usually only such breaches that will defeat a recovery. 36 Cyc. 700, 701. The nonpayment of taxes was, it is true, a ground for forfeiture, but in the case at bar the statutory notice of cancelation Avas not given (see §§ 7494, 7495, Bev. Codes), nor was the notice given Avhich was provided for in the contract, nor any attempt at cancelation until after the suit Avas commenced.

There is also nothing in the point that the plaintiff sold his interest in the land to the Avitness Stitzel before the bringing of the suit. Such a sale Avas not prohibited by the contract, nor was the retention of the property made a condition precedent to its enforcement. All that the contract stated upon the point Avas that “it is further agreed that no sale, transfer, assignment, or pledge of this contract, or of any interest therein, or of or in the premises therein described, shall be in any manner binding upon the party of the first part, unless said party of the first part shall first consent thereto by Avriting hereon.” The agreement, in short, merely sought to render such a sale void without the consent of the defendant Maddux, and not to make it the subject for a forfeiture of the contract. Even if such a sale had been directly forbidden, it Avould hardly have precluded a recovery in this case. “A breach of an independent covenant, as distinguished from a condition aaTlícIi is not a material inducement to the contract, is not a bar to specific performance.” 36 Oye. 700, 701; Grigg v. Landis, 21 N. J. Eq. 494; Hunt .v- Spencer, 13 Grant, Oh. (IJ. O.) 225. “Purchasers Avho haA^e not assigned their contract of sale, but who have agreed to sell to another on other and different terms, are still obligated to deliver good title to their vendee, and their interest in the subject-matter has not ceased, and an action for specific performance is properly brought in their names.” 36 Cyc. 760; Bittrick v. Consolidated Improv. Co. 51 Wash. 469, 99 Pac. 303. In the case at bar, though there Avas a Avarranty deed to Stitzel, there was an accompanying agreement or memorandum signed by the said Stitzel, which provided that Stitzel still owed the plaintiff “on account thereof the sum of $179.42, which amount is said to be paid by the giving of a promissory note to the said Fred Acker-man, with real estate security due on or about October 1, 1911, the same to be given by me as soon as deed to said lots are obtained from O. J. Maddux to said Fred Ackerman, transferring the title to said Ackerman.”

Defendants also complain of the action of the court in decreeing the execution of a warranty deed and making the judgment operate as such. We can see no error in such action. It was simply requiring the defendant to live up to the terms and conditions of his contract.

There is no justification to be found in the evidence, for the statement that the defendant Catherine Melrose was an innocent purchaser of the property for value. Both she and the defendant Maddux testified positively that the defendant Maddux was her investing agent, and that she trusted entirely to his judgment. In such a case the recently acquired knowledge of her agent would be imputed to her.

The judgment of the District Court is affirmed.