Nielson v. Hendrickson
| Decision Date | 12 June 1922 |
| Docket Number | 4789. |
| Parties | NIELSON v. HENDRICKSON ET AL. |
| Court | Montana Supreme Court |
Rehearing Denied July 10, 1922.
Appeal from District Court, Yellowstone County; A. C. Spencer Judge.
Action by Norman W. Nielson against H. Hendrickson and another. From a judgment for plaintiff, and an order denying a new trial defendants appeal. Affirmed.
T. F Shea and F. L. Tilton, both of Billings, for appellants.
R. O. Lunke, of Sidney, for respondent.
On November 17, 1919, these defendants executed and delivered to plaintiff an instrument in writing by the terms of which they agreed to sell to plaintiff and convey by warranty deed certain real estate in Yellowstone county, for $20,000. They acknowledged the receipt of $500, and agreed that, if plaintiff elected to purchase the property, the $500 should be credited upon the purchase price. It was provided further that, if plaintiff elected to purchase, he should pay $4,500 additional, assume a mortgage indebtedness against the property for $6,000, and execute and deliver a second mortgage for $9,000 to secure the balance, payable January 15, 1925, with interest at 7 per cent. per annum. It was provided further that defendants should keep the offer open until 12 o'clock noon on January 15, 1920, "at which time the purchaser, having complied with conditions herein set forth, may have possession of the property, time being the essence and important part of this option." The present action was instituted to recover the $500, with interest thereon from January 15, 1920.
The complaint sets forth the transaction in detail and a copy of the writing is attached as an exhibit. It is alleged that on January 15, 1920, plaintiff tendered to defendants $4,500 and a mortgage duly executed according to the terms of the writing, and otherwise duly kept and performed all the terms and conditions by him to be kept and performed; that defendants refused to execute or deliver a deed conveying the property, or to deliver possession; and that they retain and refuse to return the $500, although demand therefor has been made. In their answer defendants admit the execution and delivery of the writing and the receipt of and refusal to return the $500, and deny all the other allegations of the complaint. Upon the trial, and at the conclusion of the evidence, the court directed a verdict in favor of the plaintiff, and from the judgment entered, and from an order denying a new trial, defendants appealed.
The writing dated November 17, 1919, is merely an option ( Ide v. Leiser, 10 Mont. 5, 24 P. 695, 24 Am. St Rep. 17; Snider v. Yarbrough, 43 Mont. 203, 115 P. 411), but nevertheless defendants insist that the provision making time of the essence of it was intended for their exclusive benefit; hence their failure to deliver possession of the property on January 15 did not constitute a breach, or entitle plaintiff to recover the advance payment, and Fratt v. Daniels-Jones Co., 47 Mont. 487, 133 P. 700, is relied upon to support the contention. In that case it was said that the provision in the contract making time of its essence was intended for the benefit of the vendor, but the language is referable to the facts of that particular case, and was not intended as the statement of a rule applicable to all writings containing a like provision. The language was authorized by the terms of the contract there involved, which indicated clearly that the provision was to be obligatory only on the vendee. The writing there considered was a bilateral contract; whereas, the one now under consideration is an option, and an option binds only the party who executes it. If plaintiff had elected not to purchase, he would not have been required to...
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