Killough v. Lee

• Decision Date: 02 February 1893
• Citation: 21 S.W. 970
• Parties: KILLOUGH v. LEE.
• Court: Texas Court of Appeals

Page 970

21 S.W. 970

KILLOUGH v. LEE.

Court of Civil Appeals of Texas.

February 2, 1893.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Petition by D. S. Killough against C. H. Lee for a specific performance of a contract to convey land. Defendant had judgment, and plaintiff appeals. Affirmed.

G. E. Mann, for appellant. Gresham & Jones, for appellee.

WILLIAMS, J.

This was a suit for specific performance brought by appellant upon the following instrument: "Galveston, February 24, 1890. Received from Dr. D. S. Killough fifty dollars, for an option to buy within six days, from twelve o'clock, Monday, February twenty-fifth, A. D. eighteen hundred and ninety, the northeast and southeast blocks of outlot No. 85, city of Galveston, Texas, and improvements thereon, except lot No. eighty-five, (85;) and it is further agreed and understood that a one-sixth interest in the within-named property is owned by a minorson of C. H. Lee, and the sale of his interest is contingent upon authority from the court. The price agreed upon is twelve thousand dollars cash, upon payment of which the said Chas. H. Lee will make deed for his five-sixths interest, and make application to court for the sale of interest of his minor son. This option closes and expires by limitation at twelve o'clock, March second, A. D. 1890, being six days from this date. [Signed] C. H. Lee. By J. W. Riddell, Agent. Accepted. [Signed] D. S. Killough." The petition alleged that, within the six days allowed in which appellant could buy the property, he notified the agent of appellee that he would take it, and offered to deposit with the agent such an amount as might be required of him to bind the purchase; that the agent declined to accept any less sum than $12,000, stipulated in the agreement as the price of the land; that it was the custom of Galveston, on purchase of real estate, for the purchaser to deposit a reasonable amount of money with the seller as earnest of his good faith and intention to carry out the contract of purchase, to be held by the seller pending the examination of the title. It appeared from the petition that the purchase money of the land was neither paid nor tendered within the six days. Exceptions to the petition were sustained, and the cause was dismissed by the court below.

The only question which is presented for our determination is whether or not the failure of appellant to pay the price stipulated for the land before the time fixed when the option should expire put an end to his rights under the agreement. Appellant contends that his notice to appellee's agent that he would take the land on the terms proposed was an exercise of his option, and...