Horgan v. Russell
| Decision Date | 05 February 1913 |
| Docket Number | 81912 |
| Citation | 140 N.W. 99,24 N.D. 490 |
| Parties | HORGAN et al. v. RUSSELL |
| Court | North Dakota Supreme Court |
From an order of the District Court for McLean County, Winchester J., overruling a demurrer to the complaint, defendant appeals.
Affirmed.
Purcell & Divet and Hyland & Nuessle, for appellant.
To constitute a contract specifically enforceable by reason of offer and acceptance, the acceptance must be definite and unconditional, leaving nothing further to be done by the one making the offer. DeJonge v. Hunt, 103 Mich. 94, 61 N.W. 341; Beiseker v. Amberson, 17 N.D. 215, 116 N.W. 94.
The vendor must be paid, or payment must be offered at his residence. Greenawalt v. Este, 40 Kan. 418, 19 P 803; Batie v. Allison, 77 Iowa 313, 42 N.W. 306; Egger v. Nesbitt, 122 Mo. 667, 43 Am. St. Rep. 596 27 S.W. 385; DeJonge v. Hunt, 103 Mich. 94, 61 N.W 341; Richards Trust Co. v. Beach, 17 S.D. 432, 97 N.W. 358.
The law fixes the time and place of payment, where contract is silent. Batie v. Allison, 77 Iowa 313, 42 N.W. 306; Mier v. Hadden, 12 Ann. Cas. 92 (note).
On a sale of land, there is no implied obligation on the part of the vendor to furnish an abstract. Richardson Trust Co. v. Beach, 17 S.D. 432, 97 N.W. 358; Stearns v. Clapp, 16 S.D. 558, 94 N.W. 430; Jepson v. Marohn, 22 S.D. 593, 21 L.R.A.(N.S.) 935, 119 N.W. 988; Donley v. Porter, 119 Iowa 542, 93 N.W. 574.
Provision in contract for time in which to examine abstract does not indicate a promise by vendor to furnish it, nor does it change the rule. Easton v. Montgomver, 90 Cal. 307, 25 Am. St. Rep. 123, 27 P. 280.
In order to maintain such an action, the amount due should have been tendered. Kulberg v. Georgia, 10 N.D. 461, 88 N.W. 87; Rude v. Levy, 24 L.R.A.(N.S.) 91, and note.
A mere option does not give the optionee any title. Warvelle, Vend. & P. p. 187; 24 L.R.A.(N.S.) 91.
McCulloch & Nelson, for respondents.
An option contract fully accepted, may be enforced by action for specific performance. Turner v. McCormick, 56 W.Va. 161, 67 L.R.A. 853, 107 Am. St. Rep. 904, 49 S.E. 28.
There was an unqualified acceptance. Swiger v. Hayman, 56 W.Va. 123, 107 Am. St. Rep. 899, 48 S.E. 839, 3 Ann. Cas. 1030; Turner v. McCormick, supra; 39 Cyc. 1238, and cases cited; Kreutzer v. Lynch, 122 Wis. 474, 100 N.W. 887; Hunter v. Coe, 12 N.D. 505, 97 N.W. 869; 36 Cyc. 761, and cases cited.
Specific performance will be decreed against the constructive trustee, and no tender is necessary. Sizer v. Clark, 116 Wis. 534, 93 N.W. 539; Frank v. Stratford-Hancock, 13 Wyo. 37, 67 L.R.A. 571, 110 Am. St. Rep. 978, 77 P. 134.
The tender made is sufficient. Shelly v. Mikkelson, 5 N.D. 22, 63 N.W. 210; 36 Cyc. 702, and cases cited; Newman v. Baker, 10 App. D. C. 187; 39 Cyc. 2090, and cases cited; Rev. Codes 1905, Secs. 5219, 5255, 5268; Damon v. Weston, 77 Iowa 259, 42 N.W. 187; Stanford v. McGill, 6 N.D. 536, 38 L.R.A. 760, 72 N.W. 938.
Defendant had full knowledge of the option, and took subject to equities. Smith v. Bangham, 156 Cal. 359, 28 L.R.A.(N.S.) 522, 104 P. 689; Kerr v. Day, 14 Pa. 112, 53 Am. Dec. 526; Barrett v. McAllister, 35 W.Va. 103, 12 S.E. 106; Sizer v. Clark, 116 Wis. 534. 93 N.W. 539; Donnally v. Parker, 5 W.Va. 301.
This is an action to enforce specific performance of a contract alleged to have been consummated by the acceptance of an option upon real estate. During the period granted by the option within which to accept the same, the optionor and owner, one Haas, sold and deeded defendant the land described in the option, who purchased and took title with full knowledge that plaintiffs held a written option to purchase such property. Plaintiffs thereafter attempted to exercise their option by service upon the former owner, Haas, of a written notice of intention to accept the option he had, previous to his transfer, granted plaintiffs. Subsequently a tender was made by depositing in a bank the difference between the encumbrances upon the land and the purchase price, and notice thereof given defendant. Plaintiffs bring this action against the purchaser, with notice to compel the transfer to them of the land involved, tendering the amount so deposited. To the complaint setting out the foregoing facts, the written option and written acceptance thereof, and written notices of tender served, defendant demurs on the grounds that the complaint does not state facts sufficient to constitute a cause of action, upon the overruling of which demurrer defendant appeals.
The first question for determination is whether there was a valid acceptance of the option granted. Upon this depends whether the option to purchase remained merely an unaccepted offer to sell, or instead by legal acceptance became changed into a valid contract of purchase and sale. The following is the option.
For and in consideration of the sum of $ 1 to me in hand paid, the receipt whereof is hereby acknowledged, I hereby grant unto I. A. Smith and J. E. Horgan an option for thirty days, from the 25th day of April, 1910, to purchase, for the sum of $ 1,600, the following described lands or leases situated in the county of McLean, and state of North Dakota.
Northeast quarter (N.E. 1/4) of section seven (7) township one hundred forty-six (146) range eighty-two (82) upon the following terms and conditions, to wit: Said I. A. Smith and J. E. Horgan to signify his intention to take or reject the same by due notice in writing within this time above specified, and a failure to serve such notice within the time specified shall terminate this option without further action, time being the essence of this agreement.
In case said notice shall be served in due time, then thirty days shall be given in which to examine abstract, make deeds, and close sale.
Witness: Geo. M. Schudder, Emil Wendt.
John Hass (Seal.)
To the foregoing option the following was served as an intended acceptance thereof. It reads:
To John Haas:
You are hereby notified that pursuant to the option contract, a copy of which is hereto annexed and made a part of this notice, that I. A. Smith and J. E. Horgan do hereby signify their intention to take the land described therein, and herein described as follows:
The northeast quarter (N.E. 1/4) of section seven (7), township one hundred forty-six (146), range eighty-two (82).
And you are further notified that the above named I. A. Smith and J. B. Horgan are ready, able, and willing to perform each and all of the terms thereof at such time and in such manner as may be designated by you, according to the terms of the said contract, and for that purpose are ready, able, and willing to deposit the sum of sixteen hundred ($ 1,600) to your credit in such time and place and manner as may be designated by you, and hereby demand an abstract and deed of said land.
You will please accept or reject this proposition at once, and complete the transaction according to the terms of said contract.
Signed and dated at Washburn, McLean county, North Dakota, this 9th day of May, A. D., 1910.
Washburn, North Dakota.
Appellant alleges the acceptance to have been conditional and to have embraced matters not included in the option, in that an abstract of title was demanded and the owner was asked to designate a time, place, and manner of deposit and performance, and to accept or reject a proposition not within the option given; and that the acceptance is equivocal, ambiguous, uncertain, and insufficient in law to constitute an unconditional acceptance of the option tendered.
It is the settled law of this state that, "before the acceptance of an offer becomes a binding contract, the acceptance must be unconditional, and must accept the offer without modification or the imposition of new terms." Beiseker v. Amberson, 17 N.D. 215, 116 N.W. 94. The foregoing, on acceptance of an option, has the support of all authority. We may here mention that the letter set forth in the opinion in Beisiker v. Amberson, supra, shows the acceptor qualified his acceptance by the imposition of new terms, as to place of payment and performance, by requiring the deed to be transmitted by the optionor to a place designated by the optionee, at which place, in this state, instead of the optionor's residence in Washington, performance by delivery of the deed and payment were to be made. These facts clearly distinguish Beiseker v. Amberson, supra, from the facts here before us on demurrer to plaintiff's complaint.
In option contracts, as in all contracts, acceptance is one thing, performance another and different thing; and what has heretofore been said has particular reference to the former. The cases and text-book writers distinguish, in actions for specific performance, between acceptance and performance; and the necessity for this distinction is well exhibited by the two written instruments now being considered, the so-called option and its notice of acceptance. The option itself granted "an option for thirty days . . . to purchase for the sum of $ 1,600 the following described lands;" and that its acceptance should be made by plaintiffs signifying their "intention to take or reject the same by due notice in writing within this time above specified time being the essence of this agreement." This constituted a complete offer to sell within the period named. There is a stipulated method of and time within which acceptance shall be made, or the right to make acceptance shall end. And the option contract further provides, in the last paragraph thereof, in a general way, for performance after acceptance, by the stipulation "in case said notice shall be served in due time then thirty days shall be given in which to examine...
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