95 Ky. 373 | Ky. Ct. App. | 1894
delivered the opinion of the court.
On the 17th of March, 1855, ~W. A. Bacon, the appellant, leased to the Covington & Lexington Railroad Company three acres of ground near Paris, Ky., for the term of ten years. The lessee agreed to feuce off the ground into lots, keep it fenced, and only use the premises for cattle lots. Also to pass on its cars the lessor, ivhile on his own business, and his wife and children, during the continuance of the lease. It further agreed that Bacon might put a pair of stock scales on the ground and use them, and would charge no freight for the transportation of the scales on its road, or of lumber to build an office or house for stockmen, and whatever sawdust was transported by the lessor for the shipment'of stock from Paris was to be charged half freight.
“ At the expiration of the lease, or upon the sale of said property by said Bacon, or in case of his death, the said company, by their authorized agent, shall have the right to purchase the said land now leased for the sum of ■one hundred dollars per acre, payment to be in cash at the time the deed is made and the land taken by said company. If after purchase the company shall decide to ■discontinue using said lots for stock purposes, the said Bacon, or his heirs, shall have the refusal to repurchase the same at the same price per acre for the land, and to pay for all improvements that may be put on said land, including the fencing, provided they agree to do so within ninety days after the same shall be offered to them.”
This “ extended ” lease was also signed by both parties iind put to record. Without disagreement of any substantial character, the parties continued under the contract — the lessor to obtain and use the passes, the half rates on sawdust, of which he was using large quantities
To put the contention in another form, the contract, in so far- as and inasmuch as it secures to the company w mere option to purchase the ground, is void for want of mutuality of obligation. It is argued that as both are not bound neither is bound. This doctrine, it is insisted, is borne out by the case of Boucher v. Vanbuskirk, 2 A. K. Mar., 345, decided by this court in 1820, and followed in Barbour v. Pate, 2 T. B. Mon., 8; Jones v. Noble, &c., 3 Bush, 697, and finally in a pronounced and conclusive-form in Litz v. Goosling, &c., 93 Ky., 185.
Turning from these cases where there was confessedly no sort of consideration to uphold the contracts, we notice
In re Hunter, 1 Edw. Ch., 1, the court said: “In the next place, it is said the covenant to sell is not mutual, the lessee not being bound to purchase, and that as this is a ‘one sided’ agreement, the court will not decree a specific performance.” But after discussing the authorities the learned vice-chancellor concluded thus: “ The court may, therefore, in a proper case, whore there is a covenant on one side and no mutuality, decree a performance. Besides, in a case like the present, it may be peculiarly proper. The rent may have been fixed at five hundred dollars as an inducement to the power of purchasing the property. This is a fair inference.” To the same effect are the cases of Davis v. Robert, 89 Ala., 402 (s. c., 18 Am. St. Rep., 126); Hall v. Center, 40 Cal., 63, and Souffrain v. McDonald, 27 Ind., 269. In the last-named case the court said: “Numerous authorities are cited upon the point that a mere offer to sell may be withdrawn at any time before it is accepted. That such is the law can not be controverted. But the agreement under consideration is not a mere naked proposition to sell the lot, nor can it be regarded as separate and distinct from the lease of the lot and the consideration stated in the agreement. The stipulations on the one side to lease the lot for a period of
Mr. Waterman in his work on Specific Performance of ■Contracts (page 269) lays down the same rule. “The mutuality and consideration,” says that author, “ consist in the fact that the vendee has done, upon the promise of the vendor, what the latter required, and it is immaterial that it was done without entering into a previous undertaking to do it.”
In the case under consideration, the company, for the use of three acres of unimproved ground, and the right to buy it at the-end of the lease for three hundred dollars, agreed to pay or furnish to the appellant free travel on its cars for-himself and family, haul the sawdust needed by bim in bedding the cars for stock at half price, fence off the ground into subdivisions for cattle lots, and keep the same fenced, and, what was by no means an unimportant feature of tlie contract, retain and use the premises for stock lots. We say this latter was no unimportant part of the consideration, because we gather from the contract referring to the appellant’s use of sawdust, and which is made clear from the proof, that the chief point in view with Bacon was to have the company use his grounds as its stock lots, and thus secure the right to “bed” the cars,
On the issues of fact presented, we think the lessee furnished and the lesssor received in every substantia] particular the services undertaken to be furnished under the contract. The benefits accepted by the lessor under the agreement were received throughout a period of some thirty-five years, and he will not now be heard to say “ my passes were in an unsatisfactory form; I paid full freight for my sawdust, and was put to the slight inconvenience of waiting a few days for the rebate; I got passes only over the road as it was constructed when the contracts were made, and was not allowed to ride free on other lines of the company in the various States of the Union where the road has eventually been extended; I accepted the benefits secured under the contract, but it now occurs to me that the lease and option was a personal contract
These considerations were properly dismissed by the chancellor as insufficient to prevent an enforcement of the contract. The judgment is therefore affirmed.