Monongah Coal & Coke Co. v. Fleming

• Decision Date: 02 December 1896
• Citation: 26 S.E. 201,42 W.Va. 538
• Parties: MONONGAH COAL & COKE CO. v. FLEMING et al.
• Court: West Virginia Supreme Court

26 S.E. 201

42 W.Va. 538

MONONGAH COAL & COKE CO. v. FLEMING et al.

Supreme Court of Appeals of West Virginia.

December 2, 1896

Submitted June 8, 1896

Syllabus by the Court.

1. The following instrument held to be, not an option, but an unconditional and absolute contract of sale: "Exhibit No. 3. I have this day sold to J. E. Watson the coal under my farm on West Fork river, adjoining lands of S. L. and M. T Vincent, W. S. Sandy's heirs, and others, containing about 80 acres, reserving therefrom one acre, and where I may elect. Said Watson is to pay one-fourth down on the first day of May, 1890, when I am to make deed for said coal as per option made on the 25th of September, 1888. It is further agreed that I am to have interest on all said purchase money from 1st day November, 1890. The deferred payments in one two, and three years from 1st day May, 1890. J. A Fleming."

2. Such a contract in writing, to be binding on the seller of real estate, is not required to be signed by the buyer who has accepted it; for it is signed by the vendor, the party who made the written contract of sale, the party sought to be charged thereby, and no writing signed by the vendee is required to prove the vendee's obligation to pay the consideration price, or to make it binding upon him. See chapter 98 of the Code of 1891 (page 715).

Appeal from circuit court, Harrison county.

Bill by the Monongah Coal & Coke Company and others against John A Fleming and John F. Shore. From a decree dismissing the bill plaintiff company appeals. Reversed.

A. B Fleming and John Bassel, for appellant.

HOLT, P.

On appeal from a decree of the circuit court of Harrison county, entered on the 20th day of September, 1895, dismissing plaintiff's bill brought for specific execution of a contract for the sale of coal in situ as part of the realty.

By contract dated the 21st day of May, 1888, defendant John A Fleming executed to J. E. Watson a written option for the purchase of the coal in controversy. The time within which Watson had the option to buy having expired on the 25th day of September, 1888, Fleming executed to Watson the following option for the same land: "Exhibit No. 2. Article of Agreement. This agreement, made and entered into this 25th day of Sept., 1888, between John A. Fleming of the first part, and J. E. Watson of the second part, witnesseth, that the said party of the first part hereby agrees and proposes to sell to the said party of the second part all the coal underlying the certain land situate in Harrison county, West Virginia, described as follows: On West Fork river, adjoining lands of S. L. and M. T. Vincent, Wm. S. Sandy's heirs, and others, containing about 80 acres, excepting and reserving therefrom the coal underlying the following parcel thereof, five acres, if the party of the first part so desires, and where he may elect, together with all necessary rights of way for the mining and removing of all said coal over or under the surface, as well as removing the coal from coterminous lands over and under same, and for necessary drainage and ventilation, upon the following considerations, that is to say, the said party of the second part shall pay to the said party of the first part the sum of ($30) thirty dollars per acre in manner and time as follows: One-half of purchase money cash on day of sale, and the residue on twelve months, with interest from day of sale, but the said party of the second part is and shall be entitled to the full term of twelve months from and after the date hereof to elect whether or not he will purchase the said real estate, rights, and privileges at the price and upon the terms hereinbefore specified; and, in case the party of the second part shall elect to purchase the same within the time aforesaid, he shall make and signify such election by paying or delivering to the said party of the first part the consideration aforesaid, and thereupon the said party of the first part shall execute and deliver to said party of the second part, that is to say, J. E. Watson, a sufficient deed of conveyance, with relinquishment of dower, of and for the coal and rights and privileges...