In my opinion the allegations of the bill of complaint disclose an enforcible contract.
In defendant's letter of June 24, 1924, she accepts the purchase price of $4500.00 theretofore offered by the complainant, but prescribes a different scale of maturities *Page 1119 for the deferred payments and requires a mortgage to secure them. It is true she says in that letter that she "would prefer cash rather than take a mortgage," but that is a mere statement of her "preference," — an alternative. She also states in that letter that "we do not owe any balance on the property, socould give you abstract with deed free of all liens, when the $4500.00 is payed in full." The phrase last quoted, in my opinion, does not purport to be a requirement that the complainant pay all cash in any event, and that otherwise there would be no sale. The letter does not say that the defendant "will give the complainant a deed only when $4500.00 is paid in full." On the contrary, the last quoted phrase appears chronologically immediately after defendant's statement that she would "prefer" cash rather than take a mortgage, and when she immediately followed that by saying that she "could give a deed free of all liens when the $4500.00 is payed in full," she meant only that in the event the complainant elected to pay cash she could deliver good title without incumbrances. The latter proposition was no limitation on her previously stated alternative to accept notes secured by a mortgage, provided the notes matured quarterly or semi-annually, instead of annully. Defendant's letter of June 24, 1924, is an acceptance of complainants previous offer in all respects, except as to the terms of payment. In that respect the letter is a new offer from the defendant to the complainant. It is tantamount to an offer on her part to sell for $4500.00 on either plan of payment therein stated. In the letter of June 28, 1924, complainant, by its agent, accepted that offer, and adopted one of the two methods of payment offered by the defendant.
In her letter of June 24, 1924, defendant says she will hold complainant's deposit of $100.00 "until we hear from *Page 1120 you again, to know what we are to do." To me, this means until the defendant heard whether complainant will pay all cash, or part cash with deferred payments maturing and secured as defendant prescribed in her letter of June 24, 1924. This information was promptly given her in complainant's letter of June 28, 1924, in the form of an acceptance of her terms, and while she still retained the consideration represented by the $100.00 check which she made no objection to receiving in lieu of cash, after which the defendant retained the deposit check for at least four months, until November, 1924.
In my opinion, there was a meeting of the minds, a sufficient consideration, and a sufficient compliance with the Statute of Frauds.
The total purchase price was agreed upon, as well as the portion to be paid in cash, and the dates of maturity of the notes representing the deferred payments. From that situation, equality in the amounts of the deferred payments is presumed.
See Conroy v. Woodcock,
I therefore dissent.
