Ephraim W. Hoag, Respondent, v. Edgar B. Owen et al., Appellants

Ephraim W. Hoag, Respondent, v. Edgar B. Owen et al., Appellants. (Submitted October 2, 1873; decided January term, 1874.) This was an action upon a contract. Plaintiff alleged that defendants sold to him a house upon the lands of another, and agreed to give him possession for a sum which was paid; defendants were to prepare and execute a written instrument to complete the transaction, which would be acceptable to plaintiff; that an instrument was executed and given to plaintiff for examination, who notified defendants that it "was not acceptable; and' it was never accepted or acquiesced in as a performance, as other parties were in possession, who refused to surrender; defendants denied the contract as to possession, and the evidence thereon was conflicting. Upon the trial, when paroi evidence was offered by plain.tiff as to the contract, defendants’ counsel objected, upon the ground that the writing controlled; which objection was overruled. Held, no error; as the very question in dispute was as to whether the written instrument expressed the contract as agreed upon by the parties, or only defendants’ interpretation of it not acquiesced in by plaintiff. Defendants requested the court to charge, in substance, that plaintiff should have tendered back the contract, and that he should have reconveyed or offered so to do. This the court refused to charge. Held, no error; as, if the contract was not accepted and acquiesced in, plaintiff had no occasion to reconvey, as nothing had been transferred, and he was in no way affected by the writing, but was at liberty to demand the money paid, or a compliance on the part of defendants with their agreement. Alex. Cumming for the appellants. T. & A. More for the respondent. [MAJORITY — Johnson, C.,] Johnson, C., reads for affirmance. All concur. Judgment affirmed.