Winslow v. Dundom

• Decision Date: 25 June 1912
• Citation: 125 P. 136,46 Mont. 71
• Parties: WINSLOW v. DUNDOM et al.
• Court: Montana Supreme Court

125 P. 136

46 Mont. 71

WINSLOW v. DUNDOM et al.

Supreme Court of Montana

June 25, 1912

Appeal from District Court, Fergus County; E. K. Cheadle, Judge.

Action by F. D. Winslow against William Dundom, Sr., and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Belden & Dekalb, of Lewistown, for appellants.

Ayers & Marshall and W. M. Blackford, all of Lewistown, for respondent.

HOLLOWAY J.

On March 17, 1908, William Dundom, Sr., and Kate Dundom, his wife, executed and delivered to Axel Anderson two certain instruments in writing. The first was a lease of real property for the term of five years. The second instrument which refers to the same property, reads as follows "Option. It is agreed that Axel Anderson, for value received, shall have the right to purchase my property consisting of 2,400 acres of land located in Township 10 North, 17 East, Fergus county, Montana, for a period of three years from date of this instrument, the price to be $15 per acre. I agree to furnish an abstract of title to the property showing same to be free from all encumbrance. The said property to remain in the hands of the said Axel Anderson exclusively for period of time mentioned." On January 9 1911, Anderson executed and delivered to F. D. Winslow a quitclaim deed by which he released to Winslow all his interest in the premises covered by the Dundom lease, and assigned to Winslow all his interest under the option. On January 30, 1911, Winslow notified William Dundom that he had secured the option by assignment and intended to accept the offer contained in it, and then and there prepared a deed for William and Kate Dundom to execute, and this deed was delivered to William Dundom. About March 1, 1911, William and Kate Dundom by writing notified Winslow that they withdrew the offer contained in the option agreement and would not longer abide by the same, for the reason that the option agreement was without consideration. They stated, also, that they refused to recognize any right in Winslow as assignee of Anderson. On March 10, 1911, Winslow notified both William and Kate Dundom that he was then prepared to pay the full purchase price mentioned in the option, that he desired to exercise the privilege given by the option, and demanded a deed for the property. The demand was refused, and this action was commenced by Winslow to enforce specific performance. Upon the trial the court called to its assistance a jury, to whom were submitted certain interrogatories covering the disputed questions of fact. These interrogatories were all answered by the jury in favor of plaintiff's contentions, and these findings were adopted and supplemented by other findings made by the court. A decree in favor of plaintiff was rendered and entered, and from that decree and an order denying a new trial the defendants have appealed.

Without attempting to state even the substance of the evidence contained in the voluminous record, it is sufficient to say that there is substantial evidence to support every finding made by the court and jury; and, under the rule of practice in this state, those findings will be accepted in this court, unless the appellants can show that the evidence preponderates against them or some of them. Murray v. Butte-Monitor T. Min. Co., 41 Mont. 449, 110 P. 497, 112 P. 1132. The burden thus imposed upon the appellants they have failed to maintain. At most, the record discloses a sharp conflict in the evidence, involving a mere question of the credibility of witnesses and the weight to be given to their testimony. Under these circumstances, we accept the findings as conclusive upon the facts involved. Those facts, so far as necessary to be considered now, are (1) that there was a sufficient consideration for the option agreement; (2) that it was not the intention of the parties that the option agreement should be personal to Anderson and not assignable; (3) that the value of the land increased greatly during the life of the option; and (4) that the plaintiff has been at all times since January 30, 1911, able and willing to pay the purchase price and receive a deed for the property involved. By other findings the lands mentioned in the option agreement are identified and certain facts established which are not seriously controverted, if controverted at all.

We have presented to us, then, the single question: Was the option agreement assignable so as to give Winslow the right to insist upon specific performance? There is not any uncertainty or ambiguity in the terms employed, and the question might well be treated as one of law; but out of abundance of caution the trial court submitted to the jury evidence touching the circumstances surrounding the making of this agreement and reflecting upon the intention of the parties to it, and the jury found that it was not the intention of the parties that the option should be personal to Anderson. Elaborate and most excellent briefs have been submitted by counsel for the respective parties, but, when the arguments are exhausted, the result is fairly characterized by Prof. Page in his article on Vendor and Purchaser, in 39 Cyc. p. 1245, as follows: "In some jurisdictions it is held that a bond to convey or other contract giving a particular person an option to purchase land within a certain time and upon certain terms and conditions is neither a chose in action nor a transmissible right of property, but a mere personal privilege in the person to whom it is given, and that it is not assignable by him, or subject to acceptance and enforcement by his heirs or personal representatives, unless it has been accepted and thereby changed into a binding contract of sale, or unless it is in terms given not only to him, but also to his assigns, heirs, personal representatives, etc. In other jurisdictions, however, it is held that an option to purchase land based upon a valuable consideration is assignable even before acceptance, and although it does not run to the assigns of the party to whom it is given, unless there is some provision or agreement making the contract a purely personal one." The conflict in the decisions arises upon the consideration of peculiar statutory provisions or upon the view entertained by the particular court of the nature of an option itself. We are bound by our own statutes, so far as they are applicable; and this court has had occasion heretofore to consider the nature of an option given for a valuable consideration, such as the one before us, and with our former determinations we are satisfied and adhere to them so far as they reflect upon the question now presented.

Appellants lay much stress upon the following provisions of our Revised Codes:

"Sec. 4454. A mere possibility, such as the expectancy of an heir apparent, is not to be deemed an interest of any kind."

"Sec. 4591. A mere possibility, not coupled with an interest, cannot be transferred."

Section 4454 is identical in terms with section 700 of the California Civil Code, and section 4591 is identical with section 1045 of the California Civil Code. These provisions were in force in California many years before they were adopted by us in 1895,...