In challenging the verdict of the jury and the decree of specific performance based thereon, the point made by the assignment is that there is failure of any proof, as a matter of law, of a completed and existing contract of lease and sale of the land in suit between the appellant and the appellees. If this point should be sustained, as we think it must be, it necessarily follows that appellant should have judgment for the title and possession of the land, for it was admitted that appellant had title and should recover, unless appellees established a right to specific performance. Refusing, as appellees did, to accept the deed to the land forwarded by appellant in November, 1911, and to perform the contract as made through the appellant's brother to pay $500 cash for the land, because of the adverse legal advice as to the character of title contracted for, such contract lost its legal force of enforcement by appellees, and they could not predicate a right of specific performance upon such original contract. And, further, appellees in their pleading do not rely upon the contract so made through the brother of appellant. While, however, it admittedly appears that appellees refused to perform and rejected the contract of sale of the land for cash made in behalf of appellant by her brother in November, 1911, it nevertheless further appears, and must be taken as a fact, that thereafter, on January 3, 1912, appellee C. L. Beason, by letter of that date, made a new and distinct offer to appellant in respect to the land. In the letter appellee plainly proposed to appellant to take the land and "risk the title" upon the terms that appellant would have "the deed" to the land "so made that I could pay you say $50.00 or $40.00 a year for five years, and then pay the $500.00." This proposal of appellee to appellant has through words used the elements of an offer to purchase the land outright at once on the terms of payment in the amount and at the time mentioned, and there is no room in the words used for a different construction of the nature and terms of such offer. To this proposal of appellee of purchase of the land on the terms stated, the appellant replied in her letter of January 22, 1912, in the words, "I have now decided to rent you the land for the five years at fifty dollars per year, with the understanding at the expiration of the five years you pay me five hundred cash for it." The language of the reply so plainly expresses the intention and purpose of the appellant in respect to appellee's proposal in the letter of January 3d as to admit of no reasonable doubt to appellee that it was really a rejection of his proposal of purchase outright of the land, and was a counter proposal of lease and sale of the land. And appellant's letter of February 10th emphasizes her purpose and intention of rejection of the appellee's proposal as made. While it is true that the amounts and time for the payment of the same proposed by appellee were accepted and used by appellant in her counter proposal, yet the same, it is evident, was merely the basis acceptable to her for a counter proposal for a lease first, and then a sale of the land to appellees after the expiration of the five-year lease. If the appellees construed the letter of appellant to C. L. Beason as accepting his very offer of January 3d, they clearly misapprehended the letter and its legal effect. Since the proposal of appellee was of purchase outright, and did not contain an offer to rent the land, and then purchase in five years afterwards, and the reply of appellant to the proposal expressly contained and insisted upon the terms of rental for five years first, and then sale for $500 cash after the expiration of the five years, it is manifest that the reply of appellant did not correspond to the terms proposed by appellee. The term for rental of the land became and was a material term of the counter proposal of appellant, and formed a new and variant term from the terms proposed by appellee. It is quite elementary that, unless the acceptance corresponds to the offer, there is a lack of mutuality in agreement between the parties. And it appears, as an admitted fact by appellees, that no reply was made by them to appellant's counter proposal of her letter of January 22d. It is an elementary principle of law that, unless an agreement is reached by some form of offer on one side, and accepted on the other, it is not a contract resulting in obligation and enforceable at law. It is not doubted that, had appellees replied in acceptance of the appellant's counter proposal, the case would present a very different aspect, for appellant's proposal was so complete that upon acceptance by appellees an agreement would have been formed which contained all the terms necessary to determine a contract. And if the counter proposal of appellant should be construed as intended merely to open negotiations which *Page 78 would ultimately result in a contract, such proposal of appellant called for an acceptance by appellees before they could legally assert a contract to have been formed between them and appellant. And until acceptance the counter proposal of appellant is not an agreement, and no rights either in the property or against appellant can come into existence. A mere mental intention to accept, not followed by notice to appellant, which was the situation in this record, does not have the legal effect of converting the counter proposal of appellant into a contract. And it is made conclusive by the letter of March 25th, written by appellee C. L. Beason in reply to appellant's letter of February 22d, that appellee rejected and would not accept the counter proposal of appellant, if force be given, as it must be, to the statement in the letter that, "if the proposition I made you is not acceptable to you, you may refund the payment made, the taxes for last year, and pay me a very reasonable sum for my own time spent about the place, and I will give up possession to you." It is conclusive that appellant accepted this letter as final and ending the negotiations, for she instructed her agent, Mr. Knight, to find a tenant and rent the land out. And appellees admit that they knew her intentions in the matter in June following. It does not appear that appellees had made any payment to appellant for her to refund as indicated in the letter.
There appears the evidence that appellees, in September, and after notice that appellant had acted on C. L. Beason's letter of March 25th, tendered appellant $50 in exchange, which was immediately refused and returned by appellant to appellees. It does appear that on March 16th appellees paid the taxes for the year 1911 on the land. But the payment of the taxes was not made by any authority of appellant, and while the appellees had no legal claim or contract in respect to the land. Therefore the appellees in respect to the payment of the taxes stood in the position of a mere volunteer, and as a consequence cannot legally predicate a right of recovery against appellant for the taxes.
The facts failing to establish the contract alleged by appellees, the judgment is reversed, and, as the material facts are without dispute, and present a question of law, no reason exists for remanding the cause; and judgment is therefore here rendered for appellant for the title and possession of the land, and for costs of the district court and of this appeal.