Breen v. Mayne

Decision Date24 November 1908
Citation118 N.W. 441,141 Iowa 399
PartiesBREEN v. MAYNE ET AL.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Cerro Gordo County; Clifford P. Smith, Judge.

Suit in equity for the specific performance of an option contract to convey land. The trial court dismissed the petition on the theory that plaintiff did not exercise his election within the time fixed by the option to purchase. Plaintiff appeals. Affirmed.Blythe, Markley, Rule & Smith, for appellant.

Clarke & Chambers and Cliggitt, Rule & Keeler, for appellees.

DEEMER, J.

Defendants were the owners of an undivided one-half of the property in controversy, and in October of the year 1906 plaintiff, through his agent Knapp, attempted to procure from J. J. Mayne an option upon this property. Knapp was referred to one McNider as being an agent to sell the land, and he so informed his principal. Plaintiff then went to McNider, and after some negotiations the following option was obtained by him:

“For and in consideration of one hundred seventeen dollars in hand paid, and other good and valuable considerations rendered by E. J. Breen of Fort Dodge, Iowa, the receipt of which is hereby acknowledged, I L. A. Mayne of Cerro Gordo county, state of Iowa, agree to sell to said E. J. Breen, at his option, at any time on or before October 17th, 1906, the following described premises situated in the county of Cerro Gordo and state of Iowa (here follows a description of the property), containing 117 20/100 acres at the agreed price of one hundred and fifty dollars per acre and upon the terms as follows: Seventeen thousand five hundred and fifty dollars on delivery of deed. All of the deferred payments to draw interest at the rate ______ per cent from the date of deed, payable annually. And said L. A. Mayne expressly agrees that in case that E. J. Breen sells said herein above described land at any time within the term of his contract, that he will at the request of said E. J. Breen, execute and deliver to the purchaser, that may be named by said E. J. Breen, a good and sufficient warranty deed, with full covenants, conveying and assuring the fee simple of said premises, together with an abstract showing perfect title in giver of deed, and agrees to accept the purchaser's notes for the deferred payments, said notes being in amount, and time of payment as above set forth, and secured by ______ mortgage on above described premises. In witness of which said parties have hereto caused these presents in duplicate to be executed on this 17th day of April A. D., 1906. J. J. Mayne. L. A. Mayne. Witness, C. H. McNider.”

The payment under this contract was made directly to McNider. Plaintiff then lived at Ft. Dodge, and was obtaining options upon this and other land for himself and others, thinking that they might prove profitable to a cement plant which they were then constructing in Mason City, Iowa. Soon after securing the option, plaintiff and his associates set men to work drilling upon the land, and it is contended that the results were satisfactory, that defendants were notified of that fact, and informed that he, Breen, would take the land under the option. There is no conflict in the testimony regarding some of the matters; but upon the determinative issues, or rather upon the inferences to be drawn from the testimony, there are serious disputes both of fact and law. The option was obtained in April of the year 1906, and it expired on October 17th of the same year. On September 20th, plaintiff wrote one of the defendants asking for an abstract to the land, saying that he would like a little time before the option expired to examine it and to get matters fixed up. Mayne did not answer in person, but on October 3d, McNider wrote, sending an abstract and saying, We are ready to furnish deed.” October 4th Breen wrote McNider acknowledging the receipt of the abstract, and saying he would have his attorneys examine it in the near future. On October 15th Breen returned the abstracts to McNider by mail, calling his attention to the defects pointed out by his attorney, and saying, “I take it that these matters can be fixed up.” Breen went to Mason City on the 16th, going to the abstracter's office to see if the defects pointed out in the abstract had been corrected, and learned they had not been. He then went to the bank where McNider had his office, and found that he (McNider) had gone away (to St. Louis as reported), and that he would not be back for a few days. He also learned that his letter to McNider inclosing the abstracts had not been opened. He then, it is claimed, drove to the Mayne home and found no one there. He endeavored to find one of the Maynes in Mason City, but was unable to do so. Returning to his home without seeing either McNider or the defendants, he again came to Mason City on the 19th or 20th day of October and called upon McNider. He (McNider) returned the abstracts to Breen, and Breen then went in search of the Maynes. He finally found them, and Mr. Mayne, so it is claimed, pursuant to his previous request, promised to go to Mason City to try to get the title adjusted and the matter of the sale fixed up. Whatever the truth about this, Mayne did not come to Mason City to see plaintiff, but according to his, plaintiff's, testimony, he, Mayne, avoided him. It appears without dispute that after midnight on October 17th the Maynes gave another option upon the land to some other parties representing a rival cement plant, in which the optionees agreed to hold the Maynes harmless for refusing to carry out the one theretofore given the plaintiff. It seems that after the option was given plaintiff, the Maynes indicated a desire to reserve a part of the lands covered by their option, and that they continued thus to talk down to about October 20th. McNider returned to Mason City on October 19th, and on October 20th he wrote plaintiff acknowledging the receipt of the abstracts and saying that he would have the corrections made as indicated in Breen's letter.

In a general way the matters so far recited are undisputed, save defendants say that McNider was not at any time their agent in the matter, and that what he did in the way of addressing letters was simply an accommodation. The chief dispute arises over a claim on plaintiff's part that he orally exercised his option within the time fixed, and that the option contract then and there upon became a contract of sale. This is denied by defendants, and they further say that as a matter of law there could be no binding acceptance except by a payment or tender of the purchase price within the period fixed by the option. The first is, of course, a question of fact, and the latter of law, or of mixed law and fact. We shall first take up the legal proposition, for if defendants' contention in this respect be sustained the decree is correct, for the reason that it is not contended that plaintiff paid or offered to pay the purchase price before October 17th, the time when, by the broadest construction, the option expired.

The only fixed rule regarding the manner of the exercise of an option under a contract granting it is to discover from the language of the instrument, construed in the light of competent parol testimony, the intent of the parties with reference thereto. It may be that under the terms of a given option the only proper and binding...

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