Owens v. Curd

• Decision Date: 24 June 1921
• Citation: 192 Ky. 146,232 S.W. 639
• Parties: OWENS v. CURD ET AL.
• Court: Kentucky Court of Appeals

232 S.W. 639

192 Ky. 146

OWENS v. CURD ET AL.

Court of Appeals of Kentucky.

June 24, 1921

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by W. C. Owens against M. O. Curd and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Perry B. Miller, Alfred Selligman, and Joseph Selligman, all of Louisville, for appellant.

J Wheeler Campbell, of Louisville, for appellees.

THOMAS J.

On December 14, 1916, appellant (plaintiff below), W. C. Owens bought an option from H. T. Williams and wife, M. B Williams, entitling him to purchase their tract of land, containing 120 acres, located in Clay county, Ala., on or before April 16, 1917, for the consideration to be paid of the sum of $4,000. The land seems to have been valuable principally for the graphite deposits contained in it. On April 6, 1917, just 10 days before the expiration of the option, plaintiff entered into a written contract concerning it with the defendants, Curd and Drummond, which contract, omitting signatures and proof of execution, reads:

"This agreement, made and entered into this 6th day of April, A. D. 1917, by and between W. C. Owen, of Louisville, Kentucky, party of the first part, and M. O. Curd and E. M. Drummond, both of Louisville, Kentucky, parties of the second part, witnesseth:

That whereas, said party of the first part is the owner of a certain option running from H. T. Williams and M. B. Williams, his wife, to him, dated the 14th day of December, 1916, to acquire certain lands situated in Clay county, state of Alabama, for the sum of four thousand ($4,000) dollars, said land having therein certain veins or deposits of graphite ore, and said option being in force until the 16th day of April, 1917; and whereas, said parties of the second part are desirous of making an examination of the land covered by said option, with the purpose of acquiring and developing same, should it in their estimation be profitable to do so:

Now, therefore, in consideration of the premises, the parties hereto have entered into the following agreement: Party of the first part will assign to the parties of the second part the above-described option. The parties of the second part will make an immediate examination of the property, and on or before the 15th day of April will signify their intention either to acquire said land or surrender said option to the party of the first part. In the event that they decide to acquire the said land, they agree to pay the owners thereof the sum of four thousand ($4,000) dollars, the amount of the purchase price recited in the said option, and will at the same time pay to the party of the first part the sum of two thousand ($2,000) dollars. The parties of the second part will further enter into an agreement with the party of the first part to pay him the further sum of four thousand ($4,000) dollars out of the first profits from the operation, lease, or sale of said land." Defendants immediately sent an expert to make investigations of the local conditions, for the purpose of ascertaining whether or not they would exercise the privileges given to them by that contract. There was not sufficient time before plaintiff's option elapsed, and it was extended 10 days, within which time defendants determined to purchase the property upon the terms stated in their contract with plaintiff, and Williams and wife executed to them a deed for the land, and they paid the grantors the consideration named in the option of $4,000, and paid plaintiff the $2,000 which they agreed in their contract to pay him at that time. They did not develop the property, or take therefrom any graphite, because, as they allege and we think prove, owing to the existing conditions concerning the cost of installing machinery, as well as the decline in the price of the prepared graphite for the market, they could not do so at a profit, but, on the contrary, such a venture would have inevitably resulted in great loss. Neither could they sell the property, as we think the proof shows, nor lease it, so as to realize a profit thereon.

On the 18th day of September, 1919, plaintiff filed this action against them, seeking to recover the $4,000, mentioned in the last sentence in the contract, and he alleged in his petition, not only that defendants had not developed the property, but that they had delayed for an unreasonable time to do so, or to sell or lease it, and that they could have operated the property, and could have sold or leased it, so as to realize a sufficient profit to discharge their contractual obligation to him, and which allegations were necessary to make the petition good. The answer denied the material allegations of the petition, and injected therein some other matters which we think are irrelevant, and which seem to have been abandoned, and they will not be adverted to in this opinion. In another paragraph it was alleged:

"That they [defendants] made diligent effort and search for the best and most businesslike method possible for the development of the graphite ore alleged to exist upon said property; that they made inquiries and endeavored in all reasonable ways to ascertain whether it were or not a possibility to establish machinery and mills upon said property which would perform the work of converting the crude material in the soil into such product as was commercially salable, and whether this work could be done at a profit. Defendants say that as a result of their investigations they learned that it was impossible at the time and under the circumstances as they existed to establish a mill or mills, mine or mines, upon said property, in the operation of which the defendants could have developed the graphite upon said property at a profit. Defendants further say that they made diligent efforts and sought at various times to either sell or lease said property at a profit, and that likewise their efforts in this respect failed, and that they have ever since their acquisition of said property, and are now, utterly unable to either sell or lease said property at a profit."

A reply put in issue those affirmative allegations, as well as all others made in the answer, and upon trial the jury, to whom the case was submitted under instruction of the court, returned a verdict for defendant, and, his motion for a new trial having been overruled, he prosecutes this appeal.

The substance of the complaint of counsel for plaintiff is that the court should have sustained his motion for a directed verdict in his favor, and as a basis for this contention reference is made to the case of Runyon v. Culver, 168 Ky. 45, 181 S.W. 640, L. R. A. 1916F, 3, which treats of the impossibilities of the performance of contracts including an act of God, as a defense to a suit thereon. Reliance is also had upon the cases of Monarch Oil, Gas & Coal Co. v. Richardson, 124 Ky. 602, 99 S.W. 668, 30 Ky. Law Rep. 824, Dinsmoor v. Combs, 177 Ky. 740, 198 S.W. 58, Soaper v. King, 167 Ky. 121, 180 S.W. 46, Plumber v. Southern Oil Co., 185 Ky. 243, 214 S.W. 896,...