Chandler & Co. v. McDonald-Weber Co.

215 Mass. 365 | Mass. | 1913

Sheldon, J.

The rights of these parties depend upon the “ option agreement” so called, given by the McDonald-Weber Company (hereinafter called the defendant) to the plaintiff contemporaneously with the lease of one floor of a building on Tremont Street in Boston. The defendant, which had a leasehold interest in the whole building, covenanted by the “option agreement” that if the defendant decided to sell its leasehold interest it would notify the plaintiff and would give it “an opportunity to purchase said leasehold estate, and upon the terms and conditions as fixed by” the defendant.

The plaintiff contends that by the true construction of this agreement the defendant’s decision to sell and the fixing of the terms and conditions of sale could be accomplished only by and in the course of the making by the defendant of a definite bargain with some third person. The defendant contends that by the agreement it was merely bound, if it decided to sell, to notify the plaintiff of such decision, and to give the plaintiff an opportunity to buy upon such terms and conditions as should be fixed by the defendant, and that such notice and offer made in good faith would fulfil all the obligations of the defendant. In our opinion, the latter contention is correct.

The natural meaning of the words used accords with the construction urged by the defendant. The terms and conditions upon which the plaintiff was to have the option of purchasing were not such as might be determined by an independent agreement to be concluded between the defendant and a third party, but such as might be fixed by the defendant itself. We have no right to add to this provision the further stipulation that the defendant must have found some other purchaser who had accepted or even who was willing to accept the terms which it had fixed. Fogg v. Price, 145 Mass. 513, 515.

The plaintiff contends that upon this construction the agreement is merely illusory. That may be doubted. It secured or purported to secure to the plaintiff a right which might be valuable, the right to have the premises first offered to it, upon stated terms, which must of course be fixed in good faith and not as a mere device to get rid of the plaintiff. But however that may be, we cannot give to the plaintiff any greater rights than it chose to provide for by its contract.

The construction urged by the plaintiff would require the < defendant, if it desired to sell its leasehold interest, first to find a purchaser thereof and to conclude with him a definite and complete bargain, all the terms and conditions of which should be fixed by agreement with him, and then to offer the premises to the plaintiff upon the same terms and conditions, and to wait ten days for the plaintiff to make up its mind, before it could be known whether the concluded agreement between the defendant and the proposed purchaser could be carried into execution. A merely, tentative or provisional agreement not binding upon a proposed purchaser would not be enough, if we adopt the full contention of the plaintiff; for the terms and conditions could not be said to have been fixed if they had not been made binding upon both the parties to the prospective sale. But it is manifest that such an agreement, depending for the vendor’s ability to carry it out upon the unforeseeable contingency of the plaintiff’s choice, would at best be difficult of conclusion, and very likely would be practically impossible. We cannot suppose that the parties intended that the defendant should be thus tightly fettered in making a sale which was at least contemplated as possible, unless their language shows this intention. No doubt the defendant might have made such an agreement; but this is not lightly to be presumed.

The defendant did not even agree, as in Hayes v. O’Brien, 149 Ill. 403, a case much relied on by the plaintiff, to sell to the plaintiff for such price as any other person might offer, a much less onerous stipulation than what is insisted upon here. That decision does not help the plaintiff. The case at bar more nearly resembles Folsom v. Harr, 218 Ill. 369, though the facts are not exactly the same as were there presented.

According to the findings of the single justice, the defendant having decided to sell, notified the plaintiff thereof, and soon afterwards made a written proposition of sale to the plaintiff, upon terms therein stated. This proposition the defendant made in good faith for the purpose of complying with the terms of the “ option agreement,” and both parties so understood it. The plaintiff had a full opportunity to buy, but declined to do so at the price offered by the defendant. These findings were fully warranted by the evidence reported. It follows that the defendant has performed its agreement, and the plaintiff has no ground of complaint.

The plaintiff acquired by the “option agreement” no legal or equitable estate in the leasehold. Emerson v. Somerville, 166 Mass. 115.

It is not necessary to consider the appeals from the interlocutory decrees overruling the demurrers. Each of the bills must be dismissed with costs.

So ordered.