AGREEMENTS FOR THE PURCHASE AND SALE OF REAL ESTATE.

Court of Appeals for Belmont County.

#### Leota Steel v. John A. Murphy et al.

Decided, December 11, 1918.

*Specific Performance*— Will *Not he Decreed, Unless the Remedy is Mutual*— Conditional *Acceptance of Offer to Buy or Sell Equivalent to Rejection*— Conveyance *May he Enforced of an Undivided Interest —Where Co-Tenants Save Refused to Join in Agreement to Sell.*

1. An acceptance of a written offer for the sale of real estate must be unconditional in order to become binding upon the party offering to sell.

2. A conditional acceptance, or proposing a different contract, is a rejection of the offer.

3. Courts of equity will not decree specific performance of a written contract for the sale of real estate unless the remedy under tbe contract is mutual.

4. Where the owner of an undivided interest in land, enters into a contract for the sale of the entire tract, representing that he had authority from his co-tenants to make the sale, he, in his failure to secure a conveyance from his co-tenants of their interest, can not refuse to convey his undivided interest, although the vendee can not be required to accept less than a conveyance of the entire tract.

5. In such a'case, a court of equity will at the suit of the vendee against the vendor decree specific performance of the undivided interest of the vendor, with an equitable abatement in the purchase price in proportion to the interest of the co-tenants in said premises.

*James G. Tollman,*for plaintiff.

*Hevnlein, Spriggs <& James,*contra.

Pollock, J..

This canse came into this court on appeal and was submitted on the pleadings, the evidence and the arguments of counsel. The only issue before the court arises on tbe petition of Leota Steel and the answer of the defendant, John Murphy, and reply of plaintiff thereto.

*338The plaintiff' seeks to compel the defendant, John A. Murphy, to convey to her his undivided one-half interest in the real estate described in the petition by virtue of a written contract for the sale of this real estate made by and between the plaintiff and the defendant.

An answer was filed which denied the making of the contract and plaintiff’s right to have specific performance.

It appears that on the 28th of February, 1917, Leota Steel went to the home of John Murphy for the purpose of purchasing this lot. At that time she leazmed that the lot described in the petition was owned by John Murphy and his son, James Muz-phy. While talking the matter over, John Murphy told her that he would see his son and would let her know in a few days in regard to the sale of the lot. On the 9th of March, following she received a letter ezzclosing an article of agreement for the sale of this lot. The article of agreement was between John and James Murphy of the first part and Leota Steel of the second part, and provided that the first party agreed to sell lot number 7 in the village of Merrit, Belmont county, Ohio, to Leota Steel for the consideratiozz of sixteezz huizdred dollars, the purchase money to be applied to the paymezzt of a mortgage held by the Buckeye Building & Loazz Coznpazzy, and the remainder to be paid to these parties. First party to make deed and give possessiozz between the first and tenth of April, 1917. The second party to send first party fifty dollars by return znail and receive a receipt for the amount, stating what it is for. The contract was sigzzed by John Murphy alone.

The defendant first urged that the contract was not accepted by the defendant, or izz other words that the parties never entered into the contract. The plaintiff, on receipt of this contract, prepared a cozztract containing some different terms from the one received — the difference iiz the two contracts does not appear frozn the testimony — sending the new contract by mail to John Murphy, enclosing a cheek for fifty dollars, the cash payment provided for in the first contract.

It is urged that Leota Steel could not retain possession of the contract signed by John Murphy while proposing a different contract, azzd if he did not accept the one sent by her, bind him *339by accepting his contract. An acceptance of a written offer for the sale of real .estate must be unconditional in order to become binding upon the party offering to sell. A conditional acceptance or proposing a different contract is a rejection of the offer. *First National Bank*v. *Hall,*101 U. S., 43; *Baker*v. *Johnson County,*37 Iowa, 186; *Wheaton Bldg. & Lumber Co.*v. *City of Boston,*204 Mass., 218 (90 N. E., 598.)

If the plaintiff, in answer to the defendant’s offer, sent a contract containing different terms from that of the offer of the defendant, she could not bind the defendant by accepting his offer without his further consent. But the negotiations in regard to the sale of this property between these two parties did not stop with the receipt by Murphy of the contract prepared by Leota Steel. Murphy collected the check and forwarded to Leota Steel a receipt .therefor, reciting that he had received the cash payment on the house and lot at Merrit, near Bellaire, Ohio, enclosing the receipt with a letter stating the reasons why he could not agree to the contract prepared by her.

Some other letters passed from Murphy to Leota Steel before the time of making this -deed, and each of them conveys the impression that a contract existed between the parties for the sale of the property.

In the letter which notified Leota Steel that James Murphy would not execute the deed, he does not deny the existence of a contract, but laments the condition he had got himself into. We think that he can not deny that he gave his consent to LeotaSteel, to accept the offer made by him after he had refused her proposition and can not now deny the existence of this contract between them for the sale of these premises.

After the refusal of James Murphy to perform the conditions of the contract by conveying his interest in the property to the plaintiff, she instituted this action against John Murphy to enforce specific performance of the undivided one-half interest in this property owned by him. It is urged that she can not maintain this action for the reason that the remedy of specific performance is not mutual to the parties, and that specific performance is never enforced unless the contract and remedy is mutual; that a court of equity could not decree specific perform*340anee of the undivided half of the property in favor of John Murphy for the reason that the contract provided for the sale of the entire interest, and that if he could not maintain specific performance, the plaintiff can not maintain it.

In order to enforce specific performance of a written contract for the sale of real estate the remedy must be mutual.

> “Courts of equity will never decree performance when the remedy is not mutual or one party only is bound by the agreement.” *Parkhurst*v. *Van Cortland,*1st Johnson’s Chancery, 282.

This principle was recognized by the Supreme Court of this state in *Hutcheson*v. *Heirs of McNutt,*1st Ohio, 14-20.

But the remedy on the contract as made was mutual. The defendant, John Murphy, if he had been able to produce a deed for the entire property, could have enforced specific performance against the plaintiff had she refused to accept the property; but the question in this case does not depend upon the principle of mutuality of the remedy on the contract, for that existed, but it depends upon the principle of whether, when the title of the vendor to part of the property fails, the vendee can elect to enforce specific performance of the part to which the vendor has title. If the vendor, at the time he entered into the contract for the sale of land to which he has title only to an undivided interest, represented that he had authority from the other tenants in common to sell the entire estate, and the vendee, relying on that representation, contracted to purchase the entire premises and if the vendor afterwards fails to secure a conveyance from his co-tenants, the vendee may enforce specific performance of the interest owned by the vendor. This principle is recognized in *Cochran*v. *Blottt,*161 U. S., page 350.

A court of equity will not permit the vendor to take advantage of his own wrong or mistake, but upon the election of the vendee will decree specific performance of the undivided interest owned by the vendor with an equitable abatement in the purchase price in proportion to the interest not owned by him. Story’s Equity Jurisprudence, Section 779, uses the following language in announcing the principle:

> *341“We have thus far principally spoken of cases of suits by the vendor against the purchaser for a specific performance, where the contract has not been, or can not be, strictly complied with. But suits may also be brought by the purchaser for a specific performance under similar circumstances where the vendor is incapable of making- a complete title to all the property sold, or where there has been a substantial misdescription of it in important particulars; or where the terms, as to the time and manner of execution, have not been punctually or. reasonably complied with on the part of the vendor. In these and the like eases, as it would be unjust to allow the vendor to take advantage of his own wrong, or default, or misdescription, courts of equity allow the purchaser an election to proceed with the purchase *pro tanto,*or to abandon it altogether. ’ ’

See also *Morss*v. *Elmendorf,*11 Page’s Chanc., 277; *United States*v. *City of Alexander,*19 Federal, 609; *Jones*v. *Shackleford,*5 Ky., 410; *Lillery*v. *Land,*136 N. C., 537 (48 S. E., 824); *Quary*v. *Scher,*136 Cal., 406 (69 Pac., 96).

We think from the facts developed by the testimony in this case, that the defendant, John Murphy, represented to the plaintiff, Leota Steel, for the purpose of making this sale, that he had authority from James to sell his interest, and that he was disposing of it in the contract with her. When' she visited Murphy on the 28th of February, in regard to the purchase of this property, she claims that he told her in substance that while he had authority to dispose of James’ interest, yet that he preferred to wait until he consulted with James, and that after that he would write her. It is true he does not admit this conversation, but we think that the probabilities are the conversation took place, and then on the 9th of March when he sent the contract he also enclosed with it a letter containing the following:

> “We have come to an understanding that you can have the property, so if you mean business I will write a little contract and sign it and you can send me $50 to bind the contract, and James and I will make the deed between the first of April and the 10th.”

We think that John Murphy represented to the plaintiff, Leota Steel, that he had authority to sell this entire property *342and can not now refuse on the ground that James will not convey, to specifically perform the contract so far as he has title to the property.

The decree may be drawn in favor of the plaintiff.

Metcalfe, J., and Farr, J., concur.