Stigler v. Jaap

• Decision Date: 15 February 1904
• Citation: 35 So. 948,83 Miss. 351
• Court: Mississippi Supreme Court
• Parties: GEORGE STIGLER v. CHARLES O. JAAP ET AL

35 So. 948

83 Miss. 351

GEORGE STIGLER v. CHARLES O. JAAP ET AL

Supreme Court of Mississippi

February 15, 1904

FROM the chancery court of Holmes county. HON. A. M. BYRD Chancellor.

Stigler appellant, was complainant, and Jaap and others, appellees defendant, in the court below.

In January, 1900, C. O. Jaap borrowed $ 2,000 from Mrs. T. W Stigler through her husband and agent, G. W. Stigler, and gave a deed of trust on some lots in the town of Lexington Miss. to secure same. By the terms of the deed of trust Jaap agreed to give Mrs. T. W. Stigler "the refusal of the purchase" of the lots in case he desired to sell. Jaap afterwards expressed a desire to sell the lots, and informed G. W. Stigler that he had been offered $ 1,100 for them, and said Stigler agreed to give him that much for them, and upon Jaap's request agreed to give him a suit of clothes in addition, and Jaap consented to make G. W. Stigler a deed. This was on December 12, 1900. Jaap declined to execute the deed that day, but executed the following option or agreement: "In consideration of $ 10, cash paid, I hereby agree to and do hereby obligate and bind myself to give G. W. Stigler an option or the preference of purchasing from me at the sum of $ 1,100 all the real property in Lexington, Miss. bought by me from R. H. and M. P. Love, either or both of them, and on his demand will execute proper deed to said lots on January 1, 1901." This instrument was signed and acknowledged by Jaap and delivered to Stigler, who had it filed for record. Jaap afterwards got the suit of clothes. The $ 10 mentioned in the agreement was never paid to Jaap. G. W. Stigler made repeated efforts to get Jaap to execute the deed, but he would not do so, and on January 4, 1901, Stigler and wife filed their bill in this case against Jaap, praying that he be compelled to specifically perform the agreement, and tendering full performance of their agreements. Jaap sold the lots to Pickens, Barrett & Co., and on their petition they were made parties defendant to the bill. On the final hearing the bill of complaint was dismissed, and from that decree this appeal was prosecuted.

Affirmed.

Noel, Pepper & Elmore, for appellants.

Under the terms of the deed of trust to T. W. Stigler, and as a part of the consideration of the advance secured thereby, T. W. Stigler had the right to have "the refusal of the purchase" of the lots in case Jaap desired to sell. This provision, according to the testimony of G. W. Stigler, undenied by Jaap, was understood by both to mean that in case Jaap desired to sell he should ascertain the best price he could get and that Stigler should give him as much. Clark on Contracts, 589; Ramsey v. Brown, 77 Miss. 124; Tracy v. Albany Exchange, 57 Am. Dec., 538.

Admitting, for the sake of argument, that the "option" is without consideration, upon elementary principles, it was a written, continuing offer. Clark on Contracts, 168, 169; Id. v. Leiser, 24 Am. Rep. 1; Coleman v. Applegartin, 6 Am. St. Rep., 417.

In this view it was without doubt subject to recall. However, it is not even claimed that Jaap revoked the offer. On the contrary, immediate acceptance by Stigler, especially its renewal at Willis & Company's store, and Jaap's reiterated expression of his intention to return and execute the deed, at least some time the next week, if not on the next Wednesday, are clear of all debatable territory. There was a meeting of minds on every point.

Stigler had agreed to get the suit of clothes, told Jaap where to get them, Jaap had agreed to go there after them, and the contractual relation had been firmly entered into. Stigler's agreement to accept the conveyance of the property in part payment of the debt was binding on him and his principal, T. W. Stigler. There was an offer by Stigler to perform his part in the way of buying the suit of clothes, and the only thing remaining was the execution of the deed. The statute of frauds not having been pleaded in reference to Stigler's acceptance is waived. Clark on Contracts, 135; but it was not necessary that the acceptance be in writing. 1 Reed on Statute of Frauds, sec. 391; Ib., p. 663; Lee v. Cherry, 85 Tenn. 707; Atlee v. Bartholomew, 69 Wis. 43.

Appellants contend that the "option" was not without consideration.

Jaap insisted on the suit of clothes being given him, and Stigler told him where to get it, and told the clerk to let him have it when he called for it, Jaap agreeing to call for it and afterwards getting it. This shows that the offer contained in the option was accepted immediately upon the execution of the option, and that Stigler offered to perform that part of his undertaking.

The recital of the $ 10 cash paid gives rise to the presumption that although that amount may not have been paid at the time, it was agreed to be paid. There is no evidence controverting the presumption that there was such an agreement except the evidence relating to the suit of clothes.

Jaap is estopped to deny the receipt of the consideration for the purpose of invalidating this contract. McPherson v. Fargo. 66 Am. St. Rep., 723, suit for specific performance of contract 83 to sell land. Kendrick v. Ins. Co., 70 Am. St. Rep., 592; Farnum v. Ins. Co., 17 Am. St. Rep., 240; Note to Jackson v. Cleveland, 90 Am. Dec., 270, and list of authorities. Fairley v. Fairley, 34 Miss. 18; Fairly v. Fairly, 38 Miss. 280.

Stigler did not fail to do anything devolved upon him by his contract or by law, which was necessary to be done before he was entitled to complete performance by Jaap. Eaton on Equity, 549, 551; Cheney v. Libbey, 134 U.S. 68; 2 Beach Mod. Eq. Jur., 660; Eaton on Equity, 528, and note.

The Pickens-Barrett Company was not a bona fide purchaser for value without notice, for they had notice of such facts as put them on inquiry as to the equities existing between Jaap and Stigler.

Tackett & Smith, for appellees.

A contract for an option must be supported by a valuable consideration. Kolb v. Bennett, 74 Miss. 570; 21 Am. & Eng. Enc. Law (2d ed.), 926, and authorities there cited.

The acceptance of the option must be in accordance with the terms of the contract and all conditions precedent must be strictly performed; 21 Am. & Eng. Enc. Law (2d ed.), 930, and the legion of authorities there cited in notes 4 and 7; Waul v. Kirkman, 27 Miss. 823.

Time is of the essence of a contract for an option. Curtis v. Blair, 26 Miss. 309; Liddell v. Sims, 9 Smed. & M., 609; 21 Am. & Eng. Enc. Law (2d ed.), 931, citing the following authorities in note 5: Bayley v. Leominster, I Ves. Jr., 476; Ranelagh v. Melton, 10 Jur. N. S., 1141, 2 Drew & Sm., 278; Barrell v. Sabine, 1 Vern., 266; Brooke v. Garrard, 2 De. G. & J.. 66, and Williams v. Williams, 17 Beaver, 213, from the English decisions; and the following from the United States and state decisions: Richardson v. Hardwicke, 106 U.S. 252; Waterman v. Banks, 144 U.S. 394; Vassault v. Edwards, 43 Cal. 458; Kemp v. Humphreys, 13 Ill. 289; Harding v. Gibbs, 125 Ill. 85; Stembridge v. Stembridge, 87 Ky. 91; Maggofin v. Holt, 1 Duv. (Ky.), 95; Carter v. Phillips, 144, Mass. 100; Mason v. Payne, 47 No., 517; Potts v. Wirehead, 20 Ohio St. 334; Weaver v. Burr, 31 W.Va. 736; Barrett v. McAllister, 33 W.Va. 738; Dyer v. Duffy, 39 W.Va. 148; Atlee v. Bartholomew, 69 Wis. 43; Cummings v. Lake Realty Co., 86 Wis. 382.

Also 7 Am. & Eng. Enc. Law ...