41 So. 374 | Miss. | 1906
delivered the opinion of the court.
On the 31st day of October, 1902, Comstock Brothers wrote to J. E. North as follows:
“Cincinnati, Ohio, Oct. 31, 1902.
“Mr. J. E. North, Bond, Miss.
“Dear Sir: — We will withdraw our Mississippi tract in'Harrison and Pearl River counties from the market until January 1, 1904, during which time you may send your men to look it over, and if, at the expiration of the time, or February 1, 1904, you decide to take this land, we will sell you eight-ninths and give you warranty deed on the same at the rate of $20 per acre, and in the meantime we will try to get the'consent of the parties owning the other one-ninth at the same price, but will not guarantee their consent. “Yours truly,
“Comstock Bros/'’
On the 1st day of February, 1904, the defendant North asked and obtained leave of the court to file a cross-bill. The substantial allegations of the cross-bill are that North, after receipt of above letter, expended a largo sum of money in making the examination and investigation of the land of Comstock Bros, lying in Harrison county, and said letter gave to defendant North a binding option on said land until February 1, 1904. The cross-bill then states: “It was agreed between this cross-complainant and said defendant that cross-complainant should, at his own expense, cause examination and investigation to be made of the land, and in consideration thereof cross-complainant should have the right or option to purchase said realty at any time up to the 1st day of February, 1904, at the rate of $20 per acre.” Acting upon this, and at his own expense, North expended a large sum of money, something in excess of $5,000. The cross-bill then concludes with the prayer for an accounting,
On the 2d day of February, 1904, Comstock Bros, asked leave to dismiss their original bill, which was granted by the court, and a decree entered on the 4th day of February, 1904, allowing Comstock Bros, “to withdraw their original bill, without prejudice to the right of defendant to proceed under his cross-bill, and. to obtain thereby such affirmative relief independent of the original bill as the cross-bill might entitle him to.” Comstock Bros., after filing answer denying all allegations of fraud made in cross-bill, demurred to the cross-bill of North, setting up ten different grounds of demurrer.
We only notice the second ground, which is: “Because the written contract, or option, relied upon in said cross-bill, is void on its face, for uncertainty and want of description of any lands, and for want of consideration.”
The letter written by Comstock Bros, to the defendant is nothing but a mere offer to sell to North the land in question, having no consideration to uphold it, and therefore revocable at the pleasure of Comstock Bros, before acceptance by North. The allegations of the bill do not show any acceptance on the part of North, or state facts which would constitute an acceptance on his part. All contracts for options must be supported
Let the decree he reversed, and the cross-hill dismissed.