Hollister v. Frellsen , 148 Miss. 568 ( 1927 )

^* Corpus Juris-Cyc. References: Contracts, 13CJ, p. 263, n. 74, 78; p. 264, n. 80; p. 272, n. 48; p. 293, n. 30; p. 298, n. 82, 83, 85; p. 300, n. 7; p. 301, n. 8. As to when contract deem to be complete when offer and acceptance is by telegram, see 6 R.C.L. 614; 2 R.C.L. Supp. 166; 6 R.C.L. Supp. 400. The appellant, Hollister, owned a bungalow, situated on the beach at Pascagoula, Jackson county, Miss., which was the only real estate owned by him in that county. He lived there with his wife and family for some time prior to April, 1925, at which time he went to Rochester, N.Y. In July or August of that year, his family joined him in New York and continued to live there until this case was tried.

The appellee, Frellsen, was a real estate broker in the city of Pascagoula, Miss. The mother of the appellant, Hollister, some time prior to the transaction herein involved, advised Frellsen that her son was anxious to sell his property. During the summer and fall of 1925, there was considerable real estate activity at Pascagoula; and the appellee, Frellsen, while showing a lot adjacent to the property of the appellant to a customer, one Van Buren, was asked by him whether or not Hollister's property was for sale, and, if so, that he desired and was willing to buy the property if it could be secured. Frellsen then wired Hollister at Rochester, N.Y., on October 16, 1925, as follows:

"Wire quick best cash price your beach bungalow including five per cent. commission for me."

Hollister's answer to this wire, on October 17, 1925, was:

"Retel offer bungalow six thousand cash five per cent. you until November first."

After receiving this wire, Frellsen took up negotiation with the customer, Van Buren, who agreed to buy the lot at the price named, six thousand dollars, and gave Frellsen his check for six hundred dollars to bind the sale. On the next day, October 20, 1925, the check given was deposited in escrow with a bank in Pascagoula, and a receipt was taken showing that the balance was to be paid when satisfactory abstract and conveyance were furnished. On the same day, Frellsen wired Hollister as follows:

"Your wire seventeenth. Sold your beach property yesterday, placed six hundred dollars in Pascagoula National Bank, balance to be paid when deed and abstract furnished."

On the same date, Hollister's reply to the wire was:

"Retel beach property sold prior your offer,"

— and demand was made upon Hollister, by Frellsen, for the commission earned, which demand was refused by the appellant. Thereupon suit was brought by attachment in the circuit court against the appellant, Hollister, as a nonresident. Hollister deposited in court three hundred dollars, and the attachment against the property was released, this sum to stand in lieu of the property to satisfy whatever judgment might be rendered against Hollister.

The appellee, Frellsen, proved that his customer was ready, able, and willing to buy on the terms named. The appellant, Hollister, offered proof to show that he had listed the property with another realtor, Bacot, and that Bacot had sold the property and so advised him prior to receiving Frellsen's wire notifying him of the sale of Frellsen to Van Buren. The court below excluded this evidence and granted a peremptory instruction in favor of the appellee, Frellsen.

It is contended by the appellant, Hollister, that there is no liability under the above transaction, and that the telegram does not constitute an exclusive contract on the part of the appellant to permit the appellee alone to sell the property; on the other hand, the appellee, Frellsen, contends that the contract gave him an exclusive right to sell the property until the 1st of November, and that when he had made the sale by producing a purchaser able, willing, and ready to buy on the terms named within that time, he had earned his commission. The court below accepted the theory of the appellee and granted him a peremptory instruction.

It will be noted that Frellsen's first wire merely asked for the best cash price for the property, including a five per cent. commission. In such wire, he did not ask for any exclusive right to sell nor for any time limit in which to make the sale. The reply to the first wire of Frellsen contained in the latter part the words "until November first," which, it is contended, is the stipulation or contractual provision that gives exclusive right to Frellsen until that date. The record does not show any reply to this proposition nor any acceptance of it by Frellsen until the wire of October 20th, at which time a sale has already been made by Hollister.

It seems to us the circumstances given in evidence fail to make a contract of an exclusive nature. It is a well-established rule that to make a contract by correspondence of this kind one party must make a proposition and the other accept the same as made; in other words, the minds of the parties must meet upon a definite proposition and its acceptance as made. The appellee, Frellsen, was not bound to accept or undertake the sale of the property with such a time limit. Had he accepted Hollister's proposition, a different question would have arisen, but, without notice to Hollister of an acceptance of this limit — if it be considered a time limit — he proceeded to negotiate with his customer without obligating himself in any manner to Hollister.

We think this case is controlled by Kolb v. Bennett LandCo., 74 Miss. 567, 21 So. 233; Jayne v. Drake (Miss.), 41 So. 372; Myers v. Coleman, 93 Miss. 226, 46 So. 249; that the court below erred in excluding the proof offered by the appellant, Hollister, to the effect that the property had already been sold by Bacot prior to his receipt of the notice of the sale by the appellee, Frellsen; and that the court erred in granting a peremptory instruction in favor of the appellee, Frellsen. For such errors, the judgment of the court will be reversed and the cause remanded for a new trial.

Reversed and remanded.