accepted the filing.;ofthe entry by :ij:Qoper. it should afterwards permit that entry to ripen into 'a perfect title,or ,should: phallenge her rigbtto perfect the entry, were matters resting solely in the discretion of the government. . The right to inquire into the validity of the proceedings in the regular in form, was not granted to the railroad company. Such right of inquiry remained personal to the government. It occupied the position, not of a vendor, but of a donor. It limited its gifts to lands to which a homestead right had not attached. Whenever itaccepted a homestead entry, its acceptance removed the .land from the terms of the grant. What should become of the matter thereafter as botwoon the person making the entry and the government vyas a matter that did not affect the railway company. It had no right to inquire; The government might have waived all the informalities and ,defects in the person; or in the occupation, and issued its Plltent. Whether it did or not was a matter l!)f. which the rdilroad company could not complain. It was enough for it that upon the face of the records there was an apparently valid homestead entry, one which the government had recognized, and one which it might fillallYpermit to ripen into a perfect title. The homestead claim,whether good or bad, in the language of the act, attached; and that is aU the railroad ·company could inquire into. That being settled, the land dhl not pass under this grant. For this reason the demurrer to the bill will be sustlltined.
ARTHURV. GoRDON
et al. '
(Oi'l'cuit Oowt, E. D. Tennessee. February S,1889.) CONTRACTB-REQUIBI'l'EB-AGREEMENT. Defendant wrote plaintiff: .. When you can give $1,000 for my interest. Bend :.yourdeed and 4e:replied:"I am not willinlf to give. more \11 an $700;" but Bix agent wrote to defendant: · I am directed to accept your ofte.r." t.IP which def.en.t;lant replied: have.' turned my busi· .'neBs [overJ to W.· andhewill trade wit,h yclu. and then Bend mil deed. ** * , Upon presentation of de.ed from him, will sign and send back." Held, that there wail no contract. .'. . ':
. 'InEquity. " . '..... .... . . ' . . ". . . . . ' ',,:Bill for Ai-thur against William .F. Gordon and Hugh a.ud C. :8. White. . And7'ews &: Thornbu1'gh,' for com plainnnt. Washburn: &: Templeton, for defendants. . 1
KEY, J. The bill 'ill this case isflfedfbnt specific performance of an alleged contract for the sale and conveyance of certain lands situated in thelvicinity of 'The Iilegutiationsin regllrd to the matrer rwe1'e' carried on by correspondence thrpugh the mails. C. H.Rogers appears. to: have initiated the b)T January
ARTHUR". GORDON;
559
18, 1887,w;bi9h is not copied into the record, to which GordonrepneB, February 1, 1887: "Will say you can nave the lands referred to fur fifteen hundred dollars, provided you want it right off, as I do not propose to give any optiop ;on the property." Rogers was the agent of complainant. March 3 or 17, 1887, complainant writes defendant Gordon: "We consider this [land].worth $600 in cash, and if you are agreeable to sell out to us at that figure, we will remitainount with quitclaim deed for your signature. Please reply at once; for if you will not accept this offer, we may, apply for partition sale in the usual way." Complainant already had pur<.lhased eomeundivided interests in the lands. To this proposi,tion Gordon replied, March 23, 1887: "Yours of 17th inst. re<:eived, containing bid of$600 for my entire interest in the Ky. & Tenn. lands, ,which I am very sorry to say I cannot accept. * ' When you can give 81,000 for ,my interest, send your deed and money." June 22, 1887, complainantsays:!'Referring to your correspondence, '1 now beg to you that the acreage 'Of your tract of land in Poor valley is cgnsiderably, less than you thought it, and I am not willing to give any more than 875,0 for your interest in that and your interest in the mountain lands of Kentucky. If you are willing to accept this sum, advise me'immediately, nnd the deeds will be sent for your signature." To tJ?is itdoes that Gordon ever made any June 28, 1.887, Seymour, as agent of complainant, wrote to Gordon:}'I am, directed by Mr. Arthurto accept your offer." That is, the offer of March 23,1887. To which Gordon replied, July 5, 1887: "I have 'turned Illy business [over] to Mr. Hugh White and he will trade with you, and then send me deed in accordance with the laws of those states, {JuitClaiin deed, * * * upon presentation of deed from Mm, w.i1l }3ign and !lnd,send back through Citizens' Bank,Nevada, Mo." July 21, 1887, Gordon and wife conveyed the lands to C. B. White. , ' The first question tp, ,be determined is, was there a contract between and Qo,:t;don for the purchlilse and sale of. the lands? Did their mindiS meet upon anyone. of the propositions which passed from one t.o,the,other? It insistedJor complainant that there was an of, partielSupon the offer made by defendant Gordon, March 23,1887, to sell for $1,000; that this proposition was accepted by Seymour's letter of June 28, 1887, and ackno\vledged by Gordon's reply of July 5th following. Let us see. how this is. Gordon said: "When you can give $1,000 for my interest, send your deed and money." Arthur had offered $600, and said he would remit amount with quitclaim deed for Gordon's signature. Gordon was requested to reply at once. Arthur says as to Gordon's offer to sell for $1,000: "I am not willing to give-more than $750. If you are willing to accept this sum, advise me." Here was a clear, definite, and explicit refusal to accept Gordon'spropositiori.' Itis, as if Arthur had said: "I decline to give you athousarid dollars, bp,t will give you $750. Will you accept this flum?" This brought the $1;000 proposition toan end, and in it/j'stead came a prop;osition to give 8750 which was never accepted. 'The;.aUeged(l.cceptQn,ce of the $1,000 offer by Seymour amounted to
.560
FEDERAL REPORTER,
vol. 37·
nothing, for there was nothing upon which it could fasten itself. The offer had been declined by SeyIfl.Our'sprincipal, and another l:lUbstituted by him for it. But it is insisted that Gordon's note of July 5th in reply to Seymour'R letter should be construed into an acceptance of Seymour's offer. A reasonable regard to the manifest meaning of the terms of this note does not sustain this position. "I have turned the business [over] to Mr. White, and he will trade with you. 'i< * * Upon presentation of a deed from him, I will sign and send it back." As to turning the business over to White, he spoke of what had taken place before Seymour wrote. The fair interpretation of the language is that Gordon declined to take anystep in the matter, because he had placed the business in White's hands. "White will trade with you,-that is, White will sell to you,-and when he does, and presents me the deed, I will sign it and send it back." No doubt Gordon believed that White would sell to Arthur, but certainly there was no contract, order, or direction that he should do so. The following decisions control this case: '''The rules onaw which govern this case are well settled. As no contract is complete without the mutualassent of the parties, an offer to sell imposes no obligation until it is accepted according to its terms. So long as the offer has been neither accepted nor rejected,f;Jle negotiation remains open and imposes no obligation upon either party. The one may decline to aecept, or the other may withdraw his offer; and either rejection or withdrawal leaves the matter as if no offer bad ever been made. A proposal to accept, 01' an acceptance upon terms varying from tbose offered, iaa rejection of the offer, and puts an end ,to the negotiation. unless the party who made the original offer renews it or assents to th", modification sugge'sted. The ot.ber party. having once rejected the offer, cannot afterwarc!s revive it by tendering an acceptance of. it." Railway Co. v. Rolling-Mill Co., 119 U. S. 151. 7 Sup. Ot. Rep. 168. "A proposal to accept, or acceptance upon terms varying from those offered, is a rejection of the offer." Bank v. Hall, 101 U. S. 50. It appears that in the case under consideration there has been no meeting together of the minds 'of the parties so as to make a contract mutually binding upon each in regard to the sale and purchase of the lands in controversy, and, as a consequence, complainant is not entitled to the relief he seeks. His bill will therefore be dismissed, with costs, and it is ordered accordinglj".
NEUFELD 'l1. NEUFELD.
(Jourt. S. lJ.Oalifornia. February 2,1889.) ATTACHM;ENT--IN FEDERAL COURTS·-iNSOLVENCY PROCEEDINGS IN STATE COURT.
Under Rev. St..U. S. § 910, entitling plaintiff in a common·law case in a federal court to remedies by attacliment or other process similar to those proyided Oy the laws of the state in .which the court is held, and requiring similar preliminary proof and security; and section 933. which provides that an attach· ment shall be dissolved on arty contingency on which an attachment would be dissolved in the state courts,-prOceedings in an action in which an attach-