Bradford v. Foster

• Decision Date: 18 September 1888
• Citation: 9 S.W. 195,87 Tenn. 4
• Parties: BRADFORD et al. v. FOSTER et al.
• Court: Tennessee Supreme Court

9 S.W. 195

87 Tenn. 4

BRADFORD et al. v. FOSTER et al.

Supreme Court of Tennessee.

September 18, 1888

Appeal from chancery court, Marion county; D. C. TREWHITT Chancellor.

Brown & Pope and W. D. Spears, for complainants. N.H. Burt, for respondents.

LURTON J.

This is a bill filed to obtain the specific performance of an agreement for the sale of certain mountain lands described in the pleadings. The contract of sale was executed by the defendant Foster, and is as follows:

"J W. BRADFORD et al. vs. SARAH A. YEATMAN et al.

" In Federal Court, at Chattanooga, Tenn.

"I, as purchaser of the lands in this case at public sale under decree in this cause on the 29th June, 1885, at the price of $2,650, agree with Messrs. Dodson & Moon, attorneys for complainant, that in consideration that the said Dodson & Moon, attorneys, consent that my individual notes be taken without security for the amount of my bid, I will and do hereby consent that they for their clients, the complainants, shall have the right to purchase from me the lands sold in the above case and purchased by me, by paying to me the amount of my bid, with interest, at any time within the next two years from this date; it being optional with them to purchase said lands.

"CHARLES FOSTER."

The facts necessary to a proper understanding of this agreement are these: Patterson B. West had died intestate, the owner of several large tracts of mountain lands. His heirs were numerous, and scattered through several states. Some years after descent cast, J. W. Bradford, one of these heirs, who was entitled to an interest of one-fifteenth, filed an original bill in the federal court at Chattanooga, praying for a sale of these West lands. All the other heirs were made defendants. Charles Foster, who for many years had acted as the agent for the heirs in looking after this property, intervened by petition, and was allowed to assert a claim for compensation due him as such agent. Such proceedings were had as culminated in a decree in favor of Foster against the heirs for about $2,000. The lands were, under the prayer of the original bill, ordered to be sold upon a credit of six, twelve, and eighteen months, except a cash payment of 5 per cent. The purchaser was required to execute notes, with personal security for the deferred payments. The proceeds of sale were decreed to be applied-- First, to the payment of costs and attorney's fees; second, to the payment of the decree in Foster's favor; and remainder to the heirs entitled. At the sale had under this decree, Foster bid in the lands at the price of $2,650, but was unable to give solvent personal security upon his purchase notes, as required by the decree. To meet this difficulty, the contract above set out was entered into between Messrs. Dodson & Moon, counsel for complainant, but who likewise represented two of the defendants, Mrs. Cowden and Mrs. Tall, sisters of J. W. Bradford, the original complainant. These three interests together represented a one-fifth share in the West lands, and these parties are the complainants, and claim to be equally interested under the contract made by their attorneys, Dodson & Moon.

The relief sought is resisted upon several grounds which have been very earnestly pressed upon us by the solicitor for defendant. The first, and, perhaps, principal, defense interposed, both by demurrer and answer, is that the contract is unilateral, and is without consideration, and hence upon both grounds null and void. The contract in question, when analyzed, is nothing but an offer to sell the lands mentioned therein for a price specified, at any time within two years. The party to whom the proposal is made is not, of course bound to take the lands; he is given an option to do so or not, as he may elect. It is claimed that the fact that the proposed vendee is not bound to take the lands makes the contract a nullity, and that the vendor cannot or ought not to be compelled to perform a contract which he could not compel the vendor to comply with. This is unsound. Before acceptance by the vendee the vendor could not compel him to take the land, but after acceptance the vendee would be as much bound as the vendor. Before acceptance such an agreement can be regarded only as an offer in writing to sell upon specified terms the lands referred to. Such an offer, if based upon no consideration, could be withdrawn by the seller at any time before acceptance. It is the acceptance while outstanding which gives an option, not given upon a consideration, vitality. If, however, an offer to sell is made in writing, and for a valuable consideration, time is given within which it shall stand open for acceptance, such an option is irrevocable. It is based upon a consideration, and has all the elements of a contract. Such a...