Torelle v. Templeman
| Decision Date | 20 April 1933 |
| Docket Number | 7016. |
| Citation | 21 P.2d 60,94 Mont. 149 |
| Parties | TORELLE v. TEMPLEMAN et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Lincoln County; C. W. Pomeroy, Judge.
Action by A. E. Torelle against W. O. Templeman and others. From a judgment in favor of the defendants, the plaintiff appeals.
Reversed and cause remanded, with directions.
E. G Toomey and Carl McFarland, both of Helena, and Blackford & Blackford, of Libby, for appellant.
B. F Maiden, of Libby, for respondent.
The plaintiff brought this action seeking specific performance of an accepted option contract.
On April 8, 1930, defendant W. O. Templeman and one Baggs executed and delivered to plaintiff the following agreement:
Later in the month of April, 1930, by correspondence between the parties to this option agreement, it was agreed that the plaintiff might exercise his option within six months from its date.
The ownership of the various claims and the amount of interest owned by each of the parties to the option agreement and other persons were as follows:
Tungsten King: J. L. Cobbledick, Frank R. Baggs, W. O. Templeman, one-third interest each.
Wind Jammer: J. L. Cobbledick, Frank R. Baggs, W. O. Templeman, a one-third interest each.
Windy Pass Fraction: J. L. Cobbledick, W. O. Templeman, Frank R. Baggs, J. A. Thornton, a one-fourth interest each.
Rising Sun Fraction: Frank R. Baggs, W. O. Templeman, a half interest each.
Buckskin: W. P. Bromley and Maggie Templeman, a one-fourth interest each; W. O. Templeman, a one-half interest.
Within the six-month period, on August 6, 1930, the plaintiff made demand upon the defendants for the delivery of conveyances, and offered to pay the purchase price mentioned in the option; and later, but within the life of his option, deposited a sufficient amount of money for that purpose in a bank at Troy, Mont., the place of residence of the defendants. Baggs in the meantime had acquired the interest of Thornton in the claims, and pursuant to the demand conveyed such interest as he had or acquired to the plaintiff, and accepted payment therefor in accordance with the terms of the option.
The defendant Templeman refused to convey his interest in the claims. The defendant Curtis secured an option from Baggs and Templeman, dated August 7, 1930, undertaking to convey a good and sufficient title to these claims within six months. Curtis, by a conveyance dated October 27, 1930, acquired the interest of Cobbledick in the various claims. He obtained the interest of defendant Templeman in these claims by conveyance dated November 6, 1930. Curtis secured his option with knowledge of the existence of the outstanding option in favor of plaintiff. Maggie Templeman, who owned an undivided interest in one of the claims, died soon after the option was secured by the plaintiff.
At the time plaintiff secured the option, he knew that various persons, other than Baggs and Templeman, were the owners of undivided interests in the various mining claims. Plaintiff at the suggestion of the parties secured a conveyance from Bromley of his interest, and paid the consideration necessary to obtain the conveyance, and somewhat in excess of the agreed proportionate price. He testified on the trial that he was willing to accept a conveyance from the defendants of such interests as they then owned. The interest of the estate of Maggie Templeman could not then be conveyed. If the plaintiff secured conveyances of the interests of the defendants, he would then be the owner of all of the claims, except as to the interest in the one claim standing in the name of Maggie Templeman, deceased.
This case was tried to the court without a jury, and resulted in a judgment of dismissal and for costs in favor of defendants, from which this appeal was perfected. The trial court made no specific findings of fact.
The defendants take the position that the contract was not an absolute option agreement, but rather an agreement to endeavor to acquire the outstanding interests in these mining claims, and, if successful, to convey their own interests, together with those acquired, to the plaintiff, provided he exercised his option. This argument depends upon the meaning to be attributed to the use of the word "undertake" as it appears in the option agreement.
One definition of the word "undertake" is "to endeavor to perform, attempt, try." Another definition is "to promise, engage, or agree, assume an obligation." Funk & Wagnalls Dictionary. The words "undertake" and "promise" are equivalent. Eastman v. Anthony, 93 Ill. 599. The words used in the option agreement were "agree and do hereby undertake." Manifestly the word "undertake" as used in the option agreement means that the parties giving the option obligated themselves to convey title to the claims.
A person may in good faith lawfully contract to sell land to which he does not have perfect title, or any title. Wilson v. Corcoran, 73 Mont. 529, 237 P. 521; Hollensteiner v. Anderson, 78 Mont. 122, 252 P. 796.
The defendants contend that the contract was not enforceable, in that it is lacking in mutuality.
An option contract, when accepted within the time and in the manner provided, becomes a valid contract upon which specific performance may be had. Ide v. Leiser, 10 Mont. 5, 24 P. 695, 24 Am. St. Rep. 17; Raiche v. Morrison, 37 Mont. 244, 95 P. 1061; Finlen v. Heinze, 32 Mont. 354, 80 P. 918; Bennett v. Petroleum County, 87 Mont. 436, 288 P. 1018.
The defendant Curtis was not a party to the option contract, but acquired interests in the mining claims subsequent to its execution and acceptance, with knowledge of its existence and that it had not expired. A subsequent purchaser with notice of a valid and irrevocable option takes subject to the right of the option holder to complete his purchase. Smith v. Bangham, 156 Cal. 359, 104 P. 689, 28 L. R. A. (N. S.) 522; Crowley v. Byrne, 71 Wash. 444, 129 P. 113; Horgan v. Russell, 24 N.D. 490, 140 N.W. 99, 43 L. R. A. (N. S.) 1150; Ross v. Parks, 93 Ala. 153, 8 So. 368, 11 L. R. A. 148, 30 Am. St. Rep. 47; Marthinson v. King (C. C. A.) 150 F. 48.
Such subsequent purchaser is a necessary party to an action for specific performance of the option contract. Pomeroy on Specific Performance (3d Ed.) § 491.
The failure of the defendants to secure a complete title is no defense to an action for specific performance, provided the option holder is willing to accept such title as the defendants may have; and the court will compel compliance with the agreement so far as possible. Alley...
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State ex rel. Board of Com'rs of Valley County v. Bruce
... ... manner provided, becomes a valid contract upon which specific ... performance may be had. Torelle v. Templeman, 94 ... Mont. 149, 21 P.2d 60. Acceptance of an option may be implied ... from the acts and conduct of the parties, as by taking ... ...