Whitworth v. Enitai Lumber Co., 31308.
| Decision Date | 10 July 1950 |
| Docket Number | 31308. |
| Citation | 36 Wn.2d 767,220 P.2d 328 |
| Court | Washington Supreme Court |
| Parties | WHITWORTH, v. ENITAL LUMBER CO. |
Department 1.
J. W. Graham Shelton, for appellant.
B. Franklin Heuston, Shelton, for respondent. SCHWELLENBACH, Justice.
This is an appeal from a judgment dismissing an action for the return of money paid as consideration for an option to purchase a mill after a verdict of the jury for the defendant.
In the early part of 1948 Roy C. Himes and John Shugarts approached the officers of the Enitai Lumber Company with regard to the purchase of its mill. After some preliminary negotiations they met at the mill office, and Mr. Himes gave the company his personal check for $500.00 and typed out the following option agreement.
'Option to Buy
'For the Sum of $500.00, receipt which is hereby acknowledged, we hereby option to sell the full interest of the Enitai Lumber Company, a corporation, to John Shugarts and Roy C. Himes for the full sum of $35000.00, The property is to be full and clear of all indebtedness. The logs in the pond will be bought at price paid by Enitai Lbr. Co., The price of $35000.00 will be paid in the following manner $24000.00 cash and balance at payments mutually agreed on. Interest will be at 4 and 1/2 per cent per annum on unpaid balance.
'The length of this option will for the period of thirty days from this date. If option is not picked up the option money will be forfeited. Lease on land will be assigned to John Shugarts and Roy Himes. If lease does not provide a for at approximately eight years operation the option is to be null and void.
'Dated this 16th day March, 1948.
[signed] Roy C. Himes
[Signed] John Shugarts'
The company was operating on land owned by Fred Hansen and leased to it by him. The lease was for a term of five years from May 1, 1946 and provided: 'At the expiration of this the lesse will have the first privilege for renewal of this lease for an additional five years.' Up to and including the time of the execution of the agreement, the lease had not been exhibited to the proposed purchasers, although its terms had been explained to them.
About ten days later Mr. Himes came to the mill and asked for the lease held by the company, explaining that the party who was financing him wanted to examine it. Later he came back and said that the lease did not give a definite description and they were unable to determine the exact location of the mill. In addition, about this time Himes indicated that he wanted more land, so the company had a survey made, which included all of the land desired by him. All of the land involved was owned by Hansen.
After the survey some of the officers of the company accompanied Himes and Shugarts to see Hansen. He was told about the proposed deal and asked if he had any objections to assigning the lease to the purchasers. He said that he had no objections. Then Himes asked him if he could have more land, in addition to that provided in the original lease. He told Himes that it would be alright, but that he would have to have more rental. No definite agreement was made at that time and Mr. Hansen testified that since that time none of the parties have discussed the transfer with him.
About this time Himes asked for an extension of thirty days on his option agreement, which was granted to him. Prior to the expiration of the sixty day period Himes went to the company and said that they were ready to close the deal. At that time Hansen was seriously ill and could see no one. Upon his recovery the parties were never able to get together concerning the land to be included in the lease. Himes testified that if the land description as disclosed by the survey had been incorporated in the lease and the lease had been extended for an additional five years, they would have been satisfied; that they were very anxious to complete the deal; that there was no uncertainty at all as to the land area. On the other hand Mr. Ellison, the manager, who conducted most of the negotiations for the company, testified that every time Himes came in and asked if they had the new lease ready, he (Ellison) would ask him what he wanted ...
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...holder may exercise an option by complying with the terms of acceptance set forth in the option agreement. Whitworth v. Enitai Lumber Co. , 36 Wash.2d 767, 770, 220 P.2d 328 (1950). If the option is exercised unconditionally in accordance with the terms of the contract, the seller must sell......
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...the option, the optionor has a concomitant obligation not to frustrate the exercise of the option. See Whitworth v. Enitai Lumber Co., 36 Wash.2d 767, 220 P.2d 328, 330 (1950) (finding waiver where "optionees, through no fault or neglect of the optionor, permitted their rights under the opt......
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