ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, October 12, 2006

More on Egger v. Nesbit

Aa Some of you, especially those who use the Epstein-Markell-Ponoroff book, teach the "mirror image" case of Egger v. Nesbit, 27 S.W. 385 (Mo. 1894).

The case involved Fredolin Egger, who bought bought some land at a tax sale, and sold it to a man named Larkin.  The land was apparently sold under the wrong name, and Scott Nesbit, who had bought up the patent title to the property and that of various heirs, brought suit to quiet title in him.  Subsequently Nesbit offered to dismiss the suit and give a quitclaim deed to Egger in exchange for $400.  Egger responded, "I will accept your proposition, with the understanding that you will deliver to me all the papers you have made in reference to the land -- U.S. patent and other deeds."  The court's decision is notable because it holds that this "understanding" that Egger will get the papers was a new term that turned his purported acceptance into a counter-offer.

Viewed one way, the case is a particularly rigid application of the mirror image rule, under which the court treated a very minor request -- what else would Nesbit do besides transfer all the deeds to the man who was buying his interest? -- as a condition and defeated the contract.  On another viewing, however, the decision may be that of a populist court ruling against the banker in a foreclosure case.

Plaintiff Fredolin Egger was born in Switzerland in 1827, attended the University of Lausanne, and emigrated to the U.S. in 1850, where he worked for a time as agent for the promoters of a Swiss colony at New Glaurus, Wisconsin.  He subsequently was engaged in the mercantile and banking businesses there, serving as justice of the peace.  In his early 40s he moved to Appleton City, Mo. (picture above left), for his health, and opened the first bank there in 1873.  It was originally known as F. Egger & Sons, but the name was later changed to First National Bank of Appleton City.  The case therefore may be the classic tale of the rich banker buying the tax deed to the property of some unfortunate, and then getting the heirs to relinquish their claims.  This view of things may have influenced the court's decision that adding a request that the grantor deliver the deeds and other papers to an acceptance turned it into a counter-offer.

At the top left is a view of Appleton City, Mo., probably dating from the time of the case.

[Frank Snyder]

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