Thomason v. Bescher

• Decision Date: 11 December 1918
• Docket Number: 482.
• Citation: 97 S.E. 654,176 N.C. 622
• Parties: THOMASON ET AL. v. BESCHER ET AL.
• Court: North Carolina Supreme Court

97 S.E. 654

176 N.C. 622

THOMASON ET AL. v. BESCHER ET AL.

No. 482.

Supreme Court of North Carolina

December 11, 1918

Appeal from Superior Court, Randolph County; Long, Judge.

Action by C. E. Thomason and another against J. C. Bescher and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

A solemn written covenant under seal giving an option within a time limited to purchase land is valid and enforceable in a suit for specific performance, though no consideration was in fact paid for the option, etc., and the parties giving the option cannot retract their offer within the time limited.

There were facts in evidence tending to show: That on June 18 1918, J. C. and W. M. Bescher, two tenants in common in a tract of land, entered into a written contract under seal giving plaintiff, Thomason, the option to purchase the timber thereon, at $6,000 within 60 days or by the 18th day of August, 1917; the said contract being in terms as follows:

"Know all men by these presents, that in consideration of the sum of one dollar ($1.00) to us in hand paid by C. E. Thomason of Davidson county, N. C., the receipt of which is hereby acknowledged, we, J. C. and W. M. Bescher, do hereby contract and agree with said C. E. Thomason to sell and convey unto said C. E. Thomason and his heirs and assigns all that certain tract or parcel of timber and roads over land with sawmill sites, situate, lying and being in Concord township, Randolph county, adjoining the lands of B. M. Pierce and others and known as the John S. Bescher place and containing 715 acres more or less; and that we will execute and deliver to said C. E. Thomason and his heirs and assigns at his or their request on or before the 18th day of August, 1917, a good and sufficient deed for the said timber and roads and mill sites with full covenants and warranty; provided and upon condition nevertheless, that the said C. E. Thomason, his heirs and assigns, pay us or our representatives or assigns the sum of six thousand dollars ($6,000.00) in cash or equivalent, it is understood and agreed that the said sale is to be made at the option of the said C. E. Thomason or his heirs or assigns, to be exercised on or before the 18th day of August, 1917.

And it is further understood and agreed that if the said C. E. Thomason and his heirs and assigns shall not demand of us the deed herein provided for and tender payment as herein provided for and on or before the said 18th of August, 1917, then this agreement is to be null and void, and we are to be at liberty to dispose of the timber to any other person or to use it as we may desire in the same manner as if this contract had never been made; but otherwise this contract is to remain in full force and effect.

And to the true and faithful performance of this agreement we do hereby bind myself and my heirs, executors, administrators and assigns.

Witness our hands and seals, this 18th day of June, 1917. All old field pine is hereby excepted--all other included."

Coplaintiff, J. F. Curry, having acquired one-half interest in said contract prior to institution of suit. That prior to June 23, 1917, plaintiff Thomason, then holding the contract, notified one of the defendants that he would take the timber, etc. That plaintiff tendered the purchase price on August 7, 1917, and had always been ready and willing to pay it. There was denial of obligation on the part of defendants, with evidence tending to show that, before any acceptance or notice thereof, defendants had, in writing, notified plaintiffs that they elected to terminate the contract. On issues submitted, the jury rendered the following verdict:

"(1) At the time of the execution of the option on the 18th day of June, 1917, and as a consideration therefor, did the plaintiff C. E. Thomason pay the one dollar to the defendants as recited in the said option? Answer: No.

(2) Did the plaintiffs thereafter notify the defendants or either of them, and prior to the 23d day of June, 1917, that they would take the timber, roads, and mill sites, under the terms of the said option set up in the complaint, and would be down the following week to pay the price and take the deed therefor? Answer: Yes.

(3) Were the plaintiffs at all times able and willing to pay the purchase price of $6,000 for the property as recited in the option in event deed was made therefor? Answer: Yes.

(4) Did the defendants, on the 23d day of June, 1917, serve the plaintiffs with the following notice: 'This is to notify you that the option given you on your timber, Randolph

county, on Monday, the 18th of June, is withdrawn, and we will not convey the timber according to its terms?' Answer: Yes."

Judgment on verdict for plaintiffs, and defendants excepted and appealed.

J. A. Spence, of Ashboro, for appellants.

Raper & Raper, of Lexington, for appellees.

HOKE J.

It is the accepted principle of the common law that instruments under seal require no consideration to support them. Whether this should rest on the position that a seal conclusively imports a consideration, or that the solemnity of the act imports such reflection and care that a consideration is regarded as unnecessary, such instruments are held to be binding agreements enforceable in all actions before the common-law courts. Speaking to the question in Harrell v. Watson, 63 N.C. 454, Pearson, C.J., said:

"A bond needs no consideration. The solemn act of sealing and delivering is a deed; a thing done, which, by the rule of the common law, has full force and effect, without any consideration. Nudum pactum applies only to simple contracts."

A similar position is stated with approval in Prof. Mordecai's lectures at page 931, and Dr. Minor, in his Institutes (part 1, vol. 3, p. 139) says:

"In all contracts under seal a valuable consideration is always presumed, from the solemnity of the instrument, as a matter of public policy and for the sake of peace, and presumed conclusively; no proof to the contrary being admitted either in law or equity so far as the parties themselves are concerned."

While there is much diversity of opinion on the subject, we think it the better position and sustained by the weight of authority that the principle should prevail in reference to these unilateral contracts or options when, as in this case, they take the form of solemn written covenants under seal and its proper application is to render them binding agreements, irrevocable within the time designated, and that the stipulations may be enforced and made effective by appropriate remedies, when such time is reasonable and there is nothing offensive and unconscionable in the terms of the principal contract.

In Watkins v. Robertson, 105 Va. 269, 54 S.E. 33, 5 L. R. A. (N. S.) 1194, 115 Am. St. Rep. 880, the question is directly presented, and in a convincing and learned opinion by Judge Cardwell the conclusion of the court on the subject is announced to the effect:

"That an option under seal for the sale of shares in a joint-stock company is a binding offer from which the promiser cannot recede during the time stipulated for in the option, and, if accepted during that time, constitutes a contract the specific performance of which a court of equity will compel. The option is in the nature of a continuing offer to sell, and, being under seal, must be regarded as made upon a sufficient consideration, and no proof to the contrary will be received at law or in equity."

In Willard v. Tayloe, 75 U.S. (8 Wall.) 557, 19 L.Ed. 501, Associate Justice Field delivering the opinion, it was held, among other things:

"A covenant in a lease giving to the lessee a right or option to purchase the premises leased at any time during the term is in the nature of a continuing offer to sell. The offer thus made, if under seal, is

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