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COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 19, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0752
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
FRED C. HAGENY, JR.,
Plaintiff-Respondent,
v.
EDWIN A. SCHOWALTER
and
EDITH E. SCHOWALTER,
Defendants-Appellants.
APPEAL from a judgment of
the circuit court for Langlade County:
JAMES P. JANSEN, Judge. Reversed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Edwin and Edith Schowalter appeal a
judgment granting specific performance of a real estate sales contract. The Schowalters argue that the trial court's
finding that the buyer accepted the seller's modifications to the sale contract
was clearly erroneous. We agree and
reverse the judgment.
This case was tried to
the court without a jury. Fred Hageny,
a logger, buys and sells forty to sixty parcels for logging each year. The Schowalters, who inherited ninety acres
of land in Langlade county from their son, listed the property for sale with Bill
Yoder, a realtor. The listing contract
extended from August 13, 1994 through August 23, 1994. On August 19, Hageny submitted a written
offer to purchase the Schowalters' property for $55,000, with a closing date on
or before January 6, 1995. It also
provided that the sellers shall immediately apply to remove the land from
forest crop.
On August 22, the
Schowalters signed the offer indicating acceptance, but with two
modifications: They required Hageny to
apply to remove the land from forest crop, and they changed the closing date
from January 6, 1995 to September 10, 1994.
They mailed the contract to the realtor on August 23.
Hageny made out a check
dated August 24 and delivered it to the realtor, who was on vacation between
August 23 and September 12. Hageny had
the property surveyed between August 27 and September 3.
On September 2, 1994,
the Schowalters sent a letter to the realtor and Hageny to indicate that they
no longer wanted to sell the property.
When the realtor, Yoder, returned from vacation on September 12, he
found, in unopened envelopes, the signed offer to purchase, the $1,000 earnest
money, and the Schowalters' September 2 letter revoking the listing
contract.
The trial court found that Hageny was aware
of the modifications and agreed to them by virtue of his tendering the $1,000
check and having the land surveyed. The trial court concluded that
"[t]aking into account the date of the check and the actions of the
surveyors, the Court finds that the check was delivered to the realtor pursuant
to the offer to purchase which requires a check to be delivered to the realtor
within one day of acceptance." The
court concluded that on September 2, there was a valid contract between the parties
and ordered specific performance. The Schowalters
appeal.
A contract is based upon
a mutual meeting of the minds as to terms, manifested by mutual assent. Household Utilities, Inc. v. Andrews
Co., 71 Wis.2d 17, 28-29, 236 N.W.2d 663, 669 (1976). Whether the parties reached the necessary
agreement as to the terms depends upon the parties' expressed intent. Bong v. Cerny, 158 Wis.2d 474,
481, 463 N.W.2d 359, 362 (Ct. App. 1990).
The initial question we
address is whether the Schowalters' returned offer constituted an acceptance or
counteroffer. The interpretation of a
document is a question of law that we review de novo. See Delap v. Institute of America, Inc., 31
Wis.2d 507, 510, 143 N.W.2d 476, 477 (1966).
It is elementary law that the acceptance of an offer upon terms varying
from those of the offer, however slight, is a rejection of the offer and is a
counteroffer. Todorovich v.
Kinnickinnic Mut. Loan & Bldg. Ass'n, 238 Wis. 39, 42, 298 N.W.
226, 227 (1941); Hess v. Holt Lumber Co., 175 Wis. 451, 455, 185
N.W. 522, 523 (1921). No contract is
formed unless the counteroffer is accepted.
This rule holds true regardless how slight the variance is. Leuchtenberg v. Hoeschler, 271
Wis. 151, 72 N.W.2d 758 (1955).
Hageny argues that the
modifications the Schowalters made to his offer were insignificant and
therefore do not transform the document into a counteroffer. Hageny contends that insignificant
suggestions that do not amount to a condition of acceptance are not a material
variation. See Hess,
175 Wis.2d at 455, 185 N.W.2d at 523-24. Whether a slight variation or a material variation is necessary to
transform the acceptance into a counteroffer is a legal question that we need
not resolve on the facts presented.
Here, the Schowalters changed the closing date from no later than
January 6, 1995 to no later than September 10, 1994. That change, together with the requirement that the buyer, not
the seller, apply for the removal of the land from forest crop, amount to a
material variation in terms. Therefore,
the Schowalters rejected Hageny's offer and made a counteroffer.
As a result, the
dispositive issue is whether the record supports the court's finding that
Hageny accepted the Schowalters' counteroffer.
This issue presents a question of fact that we review under the
"clearly erroneous" standard.
Section 805.17(2), Stats. We defer to the trial court's assessment of
weight and credibility. Id. We search the record for evidence to support
the findings the trial court made, not for findings the trial court could have
made but did not. In re Estate of
Becker, 76 Wis.2d 336, 347, 251 N.W.2d 431, 435 (1977).
The record discloses
that the first time Hageny could have learned of the Schowalters' counteroffer
was September 12. Yoder, the realtor,
testified that when he returned from his vacation, on or about September 12,
was the first time he discussed the changes the Schowalters made in Hageny's
offer and that this was the first time Hageny had been made aware of the
changes. He testified that he knew that
no one from his office would have advised Hageny of the changes made to the
offer because none of his mail had been opened. Yoder testified that as a result, the first that Hageny would
have known of the changes made to his offer would have been after he had
received the Schowalters' September 2 letter advising that they were
withdrawing their property from the market.
Schowalter testified that the first he learned that the changes he made
to the offer were acceptable to Hageny was quite a while after he had withdrawn
his property from the market.
Yoder's testimony stands
unrefuted. Hageny testified that he did
not remember when he contacted the surveyor, but that it could have been August
24 according to the surveyor's invoice.
He believed that he may have received a message on his answering machine
from someone in Yoder's office advising that the offer was back in the office,
or that his secretary may have taken a message. Hageny made out the $1,000 earnest money check on August 24. However, he did not remember when he delivered
it to Yoder's office. Hageny testified
that he did not back date the check.
Hageny did not recall when he first learned of the changes in the
contract made by Schowalters.
Hageny testified he did
not recall receiving a telephone call from Yoder's office before Yoder returned
from vacation. Although he believed
that he had been advised that "the offer was back in the office," he
offers no basis for his belief, other than the fact that he hired a surveyor
and made out an earnest money check.
Yet these actions on his part do not provide a basis for refuting
Yoder's testimony that the modified offer remained unopened until September 12.
Hageny argues that he
would not have incurred a several hundred dollar survey bill if he was not made
aware of the modifications in the offer to purchase and accepted them. The record, however, establishes
unequivocally that he did just that.
Perhaps he wishes that he had not done so, but his wish does not provide
a basis upon which to find a valid contract.
The Schowalters'
alterations to Hageny's offer constituted a rejection of his offer and a
counteroffer. The Schowalters withdrew
their counteroffer before Hageny was advised of its terms. Although once advised of the terms, Hageny
was ready and willing to accept them, the counteroffer had been withdrawn
through written communication to the real estate agent. The trial court did not reject Yoder's
unrefuted testimony as incredible. Hageny's
testimony did not contradict Yoder's because Hageny had no recollection of the
date on which he first learned of the modification of the terms of his
offer.
Hageny's payment of the
$1,000 earnest money cannot be construed as an acceptance of the Schowalters'
terms because he made the payment before he was informed of the terms. Cf. Schwartz v. Handorf,
7 Wis.2d 228, 239, 96 N.W.2d 366, 371 (1959) (tender of $500 down payment with
no strings attached after buyer's attorney approved sellers' modification to
buyers' offer constitutes acceptance of the sellers' counteroffer). The record is unequivocal that the terms of
the counteroffer were not communicated to Hageny before September 12, well
after the Schowalters withdrew the counteroffer. As a result, the trial court's determination that Hageny accepted
the Schowalters' counteroffer is without support in the record. Because there was no meeting of the minds,
an enforceable contract cannot be said to exist.
Next, Hageny argues that
the Schowalters are equitably estopped from withdrawing their
counteroffer. We disagree. Equitable estoppel requires proof of (1)
action or inaction that induces, (2) good faith reliance by another, (3) to
that person's detriment. Gillespie
v. Dunlap, 125 Wis.2d 461, 466, 373 N.W.2d 61, 64 (Ct. App. 1985). Hageny argues that he relied on the acceptance
of his offer and incurred survey expenses to his detriment. He argues that after the Schowalters signed
and mailed the offer, "Someone from Yoder's office subsequently placed a
call to Hageny." This argument
ignores the undisputed fact that no one in Yoder's office knew of the
modifications the Schowalters made on the offer until after it was
withdrawn. We conclude that there is
insufficient evidence that Hageny reasonably relied on the Schowalters' actions.[1]
By the Court.—Judgment
reversed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.