In re LANE LUMBER CO., Limited, 207 F. 762

HUNT, Circuit Judge (after stating the facts as above). Correct solution of this case is dependent upon the construction of the writings referred to- in the statement. We must look for the real intent of the parties, as evidenced by the language they have used, and in that way arrive at a proper legal effect. The contention of the petitioner is that he had a right to withdraw his offers or bids at any time before the acceptance thereof by the trustee because they were merely offers to contract in the future. But we must hold otherwise.

Jackson accompanied his proposal with the money transmitted to the trustee as an evidence of good faith in making his bid and in his offer went into detail sufficiently far to specify conditions with respect to the title to the property, times, and manner of payment. Furthermore, to protect himself against failure to complete fulfillment of any part of his bid, he limited the damage to the amount of such payments as he had made when he offered to buy from the trustee.

He made a bid by which he fairly agreed to take the property described, provided always the conditions with respect to title could be fulfilled by the trustee. It is of no controlling force that he called his offer a proposal to purchase. We must look into all the provisions of the writings. Doing so, it is plain that his payment of $2,000 was intended to he applied on the purchase price of the property with the understanding that, if he should fail to complete the purchase, no damages could be recovered beyond the limit of the sum paid to the trustee.

It clearly appears that, after due notice to all creditors, the court made and filed an order “approving and authorizing private sale of the real and personal property by the trustee, subject to the approval of the court after' due notice to all creditors.” Again, after he had received the bids of Jackson, in submitting his action to the court for confirmation, the trustee set forth: “That, in order to deliver said property to the purchaser, it is necessary * * * to have given ten days’ notice as required in the order of sale herein, given to all the creditors, so that the creditors herein may determine whether or not they desire (for) said sale to be confirmed by the court.” It was also set forth that much of the property was deteriorating in value by being kept, and that great expense would attach unless “said sale” was confirmed and the property converted into money. # As we r.ead the several writings by the parties, we gather, that it was the intention of the trustee to sell to Jackson and that it was the intention of Jackson to buy in accordance with his offer and under the conditions named therein.

The trustee seems to have done all that devolved upon him to do. He approved of the bids of Jackson, set forth the offers in his petition to the court, and advised confirmation of sale by the court, and acted in all respects with prompt and careful regard for the interests of the estate. Mason v. Wolkowich, 150 Fed. 699, 80 C. C. A. 435, 10 L. R. A. (N. S.) 765. As was said by the learned judge of the court below: “There was an acceptance and a partial performance on the part of the trustee; the estate parted with a consideration.

Having induced the officers to refrain from looking elsewhere for a purchaser and to incur expenditures in reliance upon his promises, Jackson cannot be heard to say there was no consideration.” The circumstances connected with the whole transaction made the relationship one of contract between the trustee and Jackson. In re Jungmann, 186 Fed. 302, 108 C. C. A. 380. If the offer was one which could be withdrawn by Jackson at any time, it would have been wholly unnecessary to have made a cash deposit or to. have entered into the detail employed in the written bids.

While the sale to Jackson was not confirmed as to a part of the property included in one of the offers, it would have been confirmed in strict accord with the offer of Jackson, had it not been for Jackson’s refusal to proceed to carry out his agreement. This feature of the case, however, loses importance, because the record shows that Jackson gave his notice of withdrawal to the trustee and the referee before the hour for hearing the petition for confirmation and with knowledge of the financial condition of the estate.

His position was that he would not complete the purchase and desired to withdraw his offers; but, as it was his unwillingness to perform which created the situation, the trustee was not obliged to go through the useless formality of obtaining confirmation of the sale in strict accord with Jackson’s offer. Holding that there was a contract and that Jackson has no right to a return of the money, the decree of the lower court is affirmed.