Henry T. Curtis et al. v. Alexander C. Blair, 26 Miss. 309

Mr. Justice HaNdy delivered the opinion of the court. The appellee filed this bill in the district chancery court at Holly Springs, for the specific performance of a contract for the sale of a tract .of land, under the following state of facts.

On the 22d August, 1850, one Pinson, as agent for the appellant Curtis, addressed a letter to Blair, the appellee, stating, in substance, that their friend White had called upon Pinson, to purchase a tract of land for Blair, which Pinson understood to be the land in controversy in this case, though White did not know the numbers of it; that he could not make the sale, because negotiations were then in progress between him and one Jones and Crawford, for the purchase of the land, but that it was probable they would not be able to comply with the terms, and that Blair might still be able to secure it, and to do so before the other parties, and expressing a desire that Blair should be the purchaser.

This letter stated the price and terms at which the land was offered for sale. Shortly after this, Pinson addressed Blair the following letter: — “Pontotoc, August 26th, 1852. “ A. C. Blair, Esq. “ Sir, — Within the last half hour I have sold the north half of

section twenty-four, township two, range one east, to James W. Merritt. Since then I have received yours of the 24th, and hasten to reply, that the south half can be had for $920, the market price, one fourth cash, balance at one, two, and three years, with interest from date. I can’t divide it; would be glad to sell it soon to you, or any good man. “ Mr. White did succeed in getting

section twenty-nine, township two, range one east,” (the land involved in this suit,) “ provided you come to close the trade within two weeks from the 24th, on the terms mentioned in my letter by Mr. White. The .land is too much in demand to wait long before it is closed. Yours truly, Joel Pinson.” Pinson was acting as the agent for Curtis, the owner of the land, under authority derived from another agent of Curtis, and Curtis sufficiently admits his agency in his answer to the bill.

Blair resided in Tippah county, and on the 6th September, 1850, in consequence of the last letter of Pinson, he employed one Herring, as his agent, to go to Pontotoc, and take the sum which was to be paid in cash for the land to Pinson. This agent called upon Pinson at his place of abode, which was about half a mile from his office, his known place of business, where his books and papers were kept, and where all matters connected with his land agency were transacted.

It was then, according to Blair’s witness, fifteen or twenty minutes after eleven o’clock, and according to another witness, it was fifteen or twenty minutes before twelve o’clock, and Saturday night. Pinson had retired to bed, and was asleep. Herring aroused the family, and sent information to Pinson that he had come to pay the money on the purchase of the land for Blair; but Pinson declined taking any further step in the business, complaining that Blair had not come sooner, and intimating that he had not complied with the contract.

When again applied to by Herring on the following Monday, he declined to carry out the contract. Herring did not bring the notes for the credit portion of the purchase-money, and was not authorized by Blair to execute them. The land was afterwards purchased of Pinson by the appellants, Crawford and Ayres, who were informed by Pinson that the contract with Blair was at an end, and who thereupon paid part of the purchase-money in cash, and executed their notes for the residue, taking a bond for title.

The vice-chancellor decreed that the sale to Crawford and Ayres be cancelled, and that the contract of sale to Blair be specifically executed. In the consideration of this case, several points of an incidental character have been discussed, which we deem it proper to dispose of, before we proceed to consider the main questions upon which the propriety of the decree below depends.

First, it is contended, in behalf of the appellants, that the facts of the case show no valid contract; that the agreement was verbal, and not binding, under the statute of frauds; that the letters of Pinson do not satisfy the statute, because they were mere propositions to sell the land. It is true, that when the letters were written they were but propositions to sell. They contained, however, a description of the property and the terms on which it was proposed to be sold, and every requisite of certainty and identity without resort to other proof.

It bound the party “to be charged therewith,” by whom or in whose behalf it was made, according to its terms; and the moment it was accepted, and the terms complied with by the other party, if that were done, the transaction became mutual, as to all rights and liabilities resulting from it. The acceptance, if duly made, created the mutuality necessary to a complete contract. Adams v. Lindsell, 4 Barn. & Ald. 681; Carr v. Duvall et al. 14 Pet. 77; Maclin v. Frith, 6 Wend. 103.

Secondly, it is said that the letters are signed by Pinson in his own right, and not as agent for Curtis, and that it is incompetent to show aliunde, and especially by parol evidence, that he was acting as agent. The statute does not require that the appointment of the agent to make the “note or memorandum in writing,”' should be in writing, nor does it require that the signature should be in the name of the principal. It is well settled that the statute is satisfied if the contracts be in writing and signed by the agent authorized to act therein. Yerby v. Grigsby, 9 Leigh, 387; 6 Ad. & Ellis, 486; 33 Eng. C. L.

R. 122; Story on Agency, § 270. In this case, though the strictly formal authority of Pinson is disproved by his own testimony, yet he shows that he was acting as agent under an informal authority, and the answer of Curtis sufficiently admits that he was acting as his agent. Again, it is contended that the contract arising from the letters was without consideration, because there was nothing obligatory on Blair at the time the letters were written.

By reference to the last letter, it will be seen that the purchase had already been made by White for Blair, “ provided he should come to close the trade within two weeks,” on the terms stated in the previous letter. The consideration, then, moving to Curtis, was the benefit to be derived from the subsequent completion of the contract on the part of Blair. If the agreement had not been complied with by Blair, the matter would have been a simple proposition unaccepted.

But the benefit in contemplation to Curtis, was the purchase-money for the land, and in consideration that Blair would pay that, or agree to pay it within the time stipulated, he agreed to sell the land. When Blair accepted the terms, and complied or offered to comply with them, according to the stipulations, the anticipated benefit was realized to Curtis, and the contract complete on both sides.

Considering this, then, a sufficient agreement to charge Curtis, under the statute of frauds, let us inquire, 1st, whether its terms were sufficiently complied with on the part of Blair to entitle him to the benefit of it against Curtis; and, 2d, whether under the circumstances he should have a specific enforcement of it against the rights of Crawford and Ayres. 1. First, did Blair sufficiently comply with the agreement in point of time ? By its terms he was entitled to the benefit of it, “ provided he came to close the trade within two weeks from the 24th ” of August, on the terms previously mentioned.

The computation of the time, under this phraseology, must commence on the 25th of August, excluding the 24th. 1 Cow. 714; 1 Pick. 485; 6 Cow. 659; Chitty on Bills, 404. So that the two weeks would transpire with the 7th September. It appears that Blair’s agent called on Pinson between the hours of 11 and 12 o’clock at night on that day, at his residence half a mile from his known place of business, where his books and papers pertaining to land matters were, and where he would have had' to go to transact this business properly.

He had retired to rest and was asleep, and it appears that he could not have got up and dressed himself and gone, to his office and completed the-business before the hour of 12 o’clock. It has been held that, where a party is bound to perform bis contract within a stipulated time, he has until the last moment of the last day to discharge himself. But it is also well settled that he must perform it within a reasonable time, which is to be regulated by all the circumstances of the case. 3 Sum. 530.

The offer of performance, though within the time limited, if it be near its termination, is required to be made at a proper place, and within sufficient time to allow the adverse party to protect his interest, and act with due caution and consideration in the completion of the contract. The soundness of this rule is very ably illustrated in the case of Startup v. McDonald, 46 Eng. C. L. R. 591; Davy v. Wing, 7 Maine (Greenl.) 35.

Time is of the essence of the contract, and if the one party is not ready and able to perform his part of the agreement on the day fixed for the performance, the adverse party may elect to consider it at an end. 1 Peters, 455; 9 S. & M. 612; 7 How. 172. Applying these principles to the circumstances of this case, we cannot think that the application to Pinson was made within the time required by law. In the short space of about forty minutes, at the most, he would have been compelled to leave his bed and go half a mile to his office, receive money, and perhaps draw notes and execute a title bond for the land.

He states that he could not have transacted the business without going to his office. Herring did not see him in person, but he was well justified in believing that the whole business would have to be completed; and, if so, it could not have been settled without encroaching upon the Sabbath day. But it is said that Blair was only bound by the terms of the agreement “ to come to clo,se the trade ” within the time mentioned, that is to say,.he was only required to.make known that he accepted the terms. We cannot take this view of it.

It appears by the letter that the terms had already been accepted by White, the agent of Blair, and all else that was required, was to “ close the trade.” This was to be done by paying the money in cash, in part, and executing his notes for the residue, and receiving a title bond. Under these circumstances, the expression “ come to close the trade,” could only mean “ come and close the trade.” This is clearly the true intent of the letter, and it is manifest that it was so regarded by Blair, for he ■undertook to send Herring to pay the money within the time stipulated.

Secondly, did Blair comply with his contract in substance, or did he offer to do so, within the time limited ? It appears by the letters, that the terms of sale were to be one fourth of the purchase-money in cash, and the balance on credit of one, two, and three years. It is plain from this, that it was contemplated that notes should be executed for the purchase-money, and both parties seem so to have regarded it.

Yet Herring did not bring or tender to Pinson, or offer to execute, nor was he authorized to execute, any notes for the credit portion of the purchase-money, so that a most material part of the business of “ closing the trade,” was wholly neglected. Again. It appears from the pleadings and proofs in this case, that the ground of controversy is the mere pecuniary value of the lands in dispute. Both parties are contending for them, because they were worth more in the market than was proposed to be paid for them by Blair.

The damages, therefore, for a breach of the contract, to be recovered in an action at law, would afford an ample redress; and courts of equity in such cases will not interfere except under special circumstances. 1 Sugd. Vend. 202; Hepburn v. Dunlop, 1 Wheat. 197; Hepburn v. Auld, 5 Cranch, 262; Hatch v. Cobb, 4 Johns. Ch. R. 559; 5 J. C. R. 193. In Hester v. Hooker, 7 S. & M. 778, it is said by this court, in speaking of bills of this character, that “no certain, definite rule can be laid down which would determine when a party was or was not entitled to such relief.

Cases are numerous where both bill and cross-bill have been dismissed, and the parties respectively left to their remedies at law. Where the complainant has not done all that he stipulated to do, or has not placed himself in a situation to be ready to do so, upon compliance on the other side, the court will not interpose in his behalf.” Under these views, we do not think that Blair was entitled to a specific performance of* the agreement from Curtis. 2. With much greater reason is he not entitled to have the sale to Crawford and Ayres vacated.

They purchased the land from Pinson, after the failure of Blair to perfect the sale. They had previously been informed of Blair’s negotiation for the land by Pinson, and evinced any thing' else but a disposition to interfere with it. They were, however, afterwards informed by Pinson that Blair had failed to complete the purchase, and, acting in faith of that assurance, they became the purchasers.

If it be said that they had notice from Pinson of Blair’s negotiation or purchase, or sufficient to’ put them on inquiry, and ought, by reason of that information, to have satisfied themselves that Blair had no right to the land, they also had notice from the same source that Blair’s purchase had failed. They were as well justified in acting on the latter information as on the former; and, under the circumstances, they were not required to seek further information than that last derived from Pinson. See 2 Leading Cases in Eq.,

part 1, p. 104. It would not, therefore, be equitable to cancel the purchase which they have bond fide made; and a due regard for their equities would incline us to remit Blair to his remedy at law, if he has any, for the alleged breach of contract on the part of Curtis, rather than to compel a specific performance against Curtis, and deprive Crawford and Ayres of the benefits of their purchase. The decree of the vice-chancellor is reversed, and the bill dismissed.