Von Knuth v. Ryan, 21613.

• Court: Supreme Court of Nebraska
• Writing for the Court: GRAVES
• Citation: 186 N.W. 81,107 Neb. 351
• Parties: VON KNUTH v. RYAN.
• Docket Number: No. 21613.,21613.
• Decision Date: 21 December 1921

107 Neb. 351
186 N.W. 81

VON KNUTH
v.
RYAN.

No. 21613.

Supreme Court of Nebraska.

Dec. 21, 1921.

Syllabus by the Court.

When the evidence upon a question of fact material to the issue is conflicting, and such that reasonable minds might reach different conclusions, the question is one for the jury, and it is error for the court to direct a verdict.

An option to purchase land given without consideration may be withdrawn at any time before acceptance upon giving notice to the other party thereto, but an option founded upon a valuable consideration cannot be withdrawn before the time specified therein has expired.

An option to sell land without consideration or with no time specified in the instrument within which the option must be accepted may be revoked at any time by the giver of the option upon notice to the holder of the option before acceptance. The offer when accepted constitutes a contract of sale; and the same result flows from the acceptance of the option without consideration, if accepted before the option is withdrawn or revoked.

If an option to purchase or sell certain land is revoked by the giver of the option, the consent of the holder of the option is not necessary to a revocation. Notice of a bona fide sale by the giver of the option to a third person brought to the holder of the option before acceptance by him constitutes revocation.

“A mere option for the purchase of land, indeterminate as to time * * * is terminable at any time upon reasonable notice by the vendor.” Stone v. Snell, 77 Neb. 441, 109 N. W. 750.

Courts do not permit one to avoid a contract into which he has entered on the ground that he did not attend to its terms, that he did not read the document which he signed, that he supposed it was different in its terms, or that it was a mere form.

Appeal from District Court, Dodge County; Button, Judge.

Action by Christian H. Von Knuth against J. B. Ryan. Directed verdict and judgment for the plaintiff, and the defendant appeals, and, the plaintiff having died, the action was revived in the name of Paul Peterson, his administrator. Reversed.

[186 N.W. 81]

Abbott, Rohn & Robins, and John L. Cutright, all of Fremont, for appellant.

Baldrige & Saxton, and Viggo Lyngby, all of Omaha, for appellee.

Heard before MORRISSEY, C. J., and ROSE, ALDRICH, and FLANSBURG, JJ., and GRAVES and WELCH, District Judges.

GRAVES, District Judge.

This action was commenced in the district court for Dodge county by Christian H. Von Knuth, who is appellee, against J. B. Ryan, the appellant, for the recovery of $800 and interest, as damages arising out of the alleged failure of Ryan to perform the terms of a certain option contract. The trial was to a jury, and at the close of the evidence the plaintiff moved the court to direct a verdict in his favor, which motion was sustained, and there was a verdict and judgment accordingly. Defendant appealed to this court. Subsequent to the trial the plaintiff, Von Knuth, died, and the action was revived in the name of Paul Peterson, his administrator.

The chief error relied upon by the defendant is the action of the trial court in refusing

[186 N.W. 82]

to submit the case to the jury under proper instructions and directing the jury to return a verdict for the plaintiff.

The petition alleges, in substance, that on the 12th day of July, 1919, the defendant was the owner of a certain 80 acres of land, and that on said day defendant entered into a certain written optional contract with plaintiff, wherein he agreed to convey the real estate to plaintiff, or any person designated by plaintiff, in consideration of the price of $12,000. The contract is set out in the petition, and the option is for a period of 90 days, recites a consideration of $1, and provides for a cash payment of $1,500 at the time of the sale, the assumption of a mortgage of $6,400, and a payment of $4,100 cash on March 1, 1920. The petition alleges, further, that in pursuance of the agreement above mentioned plaintiff sold said premises to one C. G. Miller on the 14th day of July, 1919, and immediately entered into a written contract for the sale of the same with C. G. Miller, who thereupon, it is alleged, made a payment to Von Knuth of $1,500 in cash on the purchase price; that immediately upon making the sale aforesaid, it is alleged, appellee made diligent effort to communicate with defendant in order to advise him of said sale and notify him to furnish an abstract and execute a deed, but that plaintiff was unable to find him; that on the 15th day of July, 1919, plaintiff advised defendant of the...