Allen v. Effler

• Decision Date: 25 November 1921
• Citation: 235 S.W. 67,144 Tenn. 685
• Parties: ALLEN v. EFFLER ET AL.
• Court: Tennessee Supreme Court

235 S.W. 67

144 Tenn. 685

ALLEN v. EFFLER ET AL.

Supreme Court of Tennessee.

November 25, 1921

Certiorari to Court of Civil Appeals.

Bill by J. C. Allen against T. L. Effler and others. Decree for defendants was affirmed by the Court of Civil Appeals, and complainant brings certiorari. Decrees of the chancery court and the Court of Civil Appeals affirmed.

Lindsay Young & Young, of Knoxville, and Gamble, Crawford & Goddard of Maryville, for Allen.

C. T Cates, Jr., of Knoxville, and T. N. Brown and Bryan & Dunn all of Maryville, for Effler et al.

L. D. SMITH, Special Justice.

On March 1, 1920, the complainant, Allen, entered into a contract with the defendants, Effler and wife, to purchase a certain tract of land in Blount county. There was a written contract entered into of an executory character. It recites that Effler and wife "have this day bargained and sold, and do hereby bargain and sell, unto" J. C. Allen certain lands, describing them.

The consideration to be paid is stated in the contract to be $370 per acre, and the property was to be surveyed within 10 days thereafter, and deed executed and delivered. The sum of $100 in cash was paid, and the contract stipulated that 50 per cent. of the purchase price would be paid upon delivery of the deed, and notes executed for the remainder.

Before the execution of this contract with Allen, and on February 12, 1920, Effler and wife entered into a written contract with the defendant Sam. T. Broyles, in which they gave to said Broyles the right and option to purchase this same land within 18 days from the date thereof, specifying the terms and conditions of the purchase; that is to say, at the price of $370 per acre, $2,000 to be paid in cash when the deed was made, and the balance on November 1, at which time possession was to be given, the deed to be put in bank until that time. This contract contained this provision:

"In consideration," etc., "I have given and grant, and do hereby give and grant, to the said Broyles or his assigns the right to purchase at any time within 18 days from the date hereof, on the terms herein set forth, the property described as follows."

Then follows the description of the same tract of land subsequently contracted to Allen, followed by the following provision:

"And for the consideration aforesaid I hereby covenant and agree to and with said Sam. T. Broyles and his assigns that, if he or they shall at any time within 18 days from the date hereof elect to purchase said property under this option, I will make to him or them, or to any person or persons whom they may appoint or designate for that purpose, a good and sufficient warranty deed for said premises upon compliance by said Sam. T. Broyles or his assigns with the condition of payment above expressed.

Witness his hand and seal this 12th day of February, 1920.

Tom his X mark Effler. [ Seal.]"

On March 1, 1920, after Effler and wife had executed the contract with Allen, the defendant Broyles notified Effler of his readiness to exercise the option which he had given him for 18 days from February 12th, and they demanded compliance with the contract. Thereupon, and on that date and at that time, a deed was drawn up and executed by Effler, and $2,000 in cash was paid to him. On the next day Mrs. Effler executed and acknowledged the deed, and same was recorded.

Effler and wife refused to carry out the contract made with Allen, and thereupon he filed the bill in this cause making Effler and wife and Sam. T. Broyles and D. F. Young, to whom Effler and wife had executed the deed parties defendant. The bill is in the nature of an ejectment suit, in which complainant claims ownership of the land under contract with Effler and wife, charging that the deed executed by Effler and wife to Broyles and Young was a cloud upon his title, and seeking specific performance by Effler and wife of the contract of purchase which he entered into with them.

The evidence shows, and the chancellor and Court of Civil Appeals have concurred in the findings, that a few days before the 1st of March, 1920, Allen learned that Effler and wife had given this option to Broyles for 18 days. Allen wanted this land for the Aluminum Company. He sent for Effler to come to see him, saying that he had a matter of importance which he wanted to talk over with him, and asked that Effler say nothing about it to anybody. Effler did not respond to this invitation, so Allen went out to see him, and there learned that Effler had given this option to Broyles. Allen intimated to Effler that this option had expired, and asked Effler to come to see him the next day. Effler came in to see Allen on the morning of March 1st and showed Allen the option he had given Broyles. Thereupon Allen advised Effler that this option had expired, and induced Effler to enter into a contract with him, which contract is made the basis of this action.

Allen denied that he had any such knowledge of this option. There is no doubt of the fact, and it is made conclusive in this court by the concurrence of the chancellor and the Court of Civil Appeals, but that Allen did know all about this option. He induced Effler to make the contract to him upon representation that the option had expired, and this representation was made after he had examined and read the option itself.

Of course, if the option had actually expired, his notice and knowledge of it would not defeat his right; so the legal question open for our consideration is whether or not the option to Broyles had expired.

As we have seen, this option was dated and executed on the 12th of February, 1920, and it granted an option to Broyles or his assigns, or right to purchase the "land at any time within 18 days from the date hereof," and the option was exercised on March 1st. The contention of the complainant is that the time expired on the last day of February.

If the date upon which the contract was executed be included within the 18 days, then the option of the defendants had expired; if it be excluded, the option had not expired. Hence we are to determine in this case whether the date of the execution of the contract shall be included or excluded in computing the length of time within which the defendants had the right to exercise the option.

The most definite rule that has been given to determine this question is to construe the word "from" used according to the tenor of the instrument and the intent of the parties. Viewing the contract with this principle in mind, it would seem quite clear that it was the intent of the parties that the defendant should have 18 days--18 full days--within which to exercise his option. This could not be done, if we include the day upon which the instrument was executed and exclude the last day. The general rule, of course, is that the law knows no fractions of a day. This case presents no exception to the general rule.

A statement from R. C. L. and one from Cyc. will indicate how the courts generally have dealt with this subject. For convenience we quote from these authorities:

" 'From' Generally.--Whether the word 'from' is to be construed as inclusive or exclusive of the terminus a quo is not settled by the courts. Various rules regarding the construction to be put on the term have been adopted, only later to be discarded and new rules approved. But much of the confusion existing in the cases involving the construction to be placed on the word in computing time will be found to be due to the desire of the courts to give due effect to the intention of the parties as expressed in the particular language or phrase used in each case. Since the decision in the leading case of Pugh v. Leeds, 2 Cowp. (Eng.) 714, the courts have ordinarily proceeded upon the theory that the word 'from,' as used to denote the commencement of a period of time, is not per se a word either of inclusion or exclusion, but is to be construed as one or other according to the tenor of the instrument or the intent of the parties and the equities of the particular case. Generally

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