271 F. 249 | 5th Cir. | 1921
This is a suit to compel specific performance of a contract for the sale of real estate. January 29, 1919, appellant, for the consideration of $100, granted to appellee an option to purchase certain lands in West Carroll parish, La., the provisions of which, material to the question at issue, are: That appellee should exercise the option within 30 days; that upon exercise of the option within the time specified appellee should pay appellant $20,000 upon the purchase price of $50,600, “upon the delivery of a valid, fee-simple deed with full covenants of warranty, conveying an absolute, unincumbered, fee-simple title; $15,300 on or before one year; $15,300-on or before two years from date of deed, with interest at 6 per cent, per annum, payable semiannually, evidenced by notes secured by a •mortgage or deed of trust on the above-described land; the cash payment to be paid on draft with exchange attached to deed at the Bank of Commerce & Trust Cpmpany, Memphis, Tenn.”; that any additional amount of federal income or profit tax, payable for the year 1919 by appellant by reason of the sale, should be added to the purchase price up to an amount not exceeding $3,000, to be evidenced by a note and secured by mortgage or deed of trust; that appellant should furnish appellee the data showing such increase; that appellant should furnish appellee a complete abstract of title within 15
it was admitted by the pleadings that February 27, 1919, appellant received from appellee the following telegram:
“Will exercise our option to buy land West Carroll Parish, La. Mail deed with draft to our bank here. Answer.”
And on the same date sent the following telegram in reply:
“Telegram. Will send papers within few days.”
In his answer appellant alleges that on March 4, 1919, his agent tendered a deed in accordance with the contract at the office of appellee, and was informed that an officer of appellee company, who was attending to the purchase of the lands, was absent, and that appellant’s agent would be notified of his return; that such notice was never given; that appellant heard nothing further from appellee until March 2, 1919, when he received a letter from appellee’s attorney stating that the examination of the abstract had not been completed; and that appellee had failed to comply with the terms of the option either by accepting the title or paying the sum stipulated for an additional option, and that on March 25, 1919, appellant notified appellee that its right to exercise the option had expired. The answer also denied that appellee had accepted the offer of sale contained in the option.
February 28, 1919, appellee’s attorney mailed to appellant the following letter dated the previous day:
“Messrs. Nickey Bros, have asked me to advise you that the examination of the title to your lands in West Carroll parish, La., has not yet been concluded, but is being vigorously prosecuted, and that we hope to close the matter the latter part of next week if title proves satisfactory, as we have every reason to believe that it will.”
March 17, 1919, appellee telegraphed to appellant as follows:
“Our attorneys report several defects in your title. No patents were ever issued by the state of Louisiana covering these lands. Certain back tax proceedings are irregular. It is possible that these defects can be cured. Will you have your attorney do this or will you authorize us- to have our attorneys do it at your expense? Answer.”
March 25, 1919, appellant wrote appellee the following letter:
“The time having expired within which you were to accept title to my Louisiana lands, described in our agreement of January 29, 1919, executed by us at Hendersonville, North Carolina, and you not having exercised your option or accepted title to the lands, I wish to notify you that all agreements between us have lapsed and are no longer in effect, and that I consider myself in no manner bound by same. This notice goes forward to you by registered mail, to-day. Please return to me at Hendersonville, N. C., the abstract of title and oblige.”
The District Court found the equities to be with appellee and entered a decree requiring specific performance. The assignments of error present the questions: (1) Whether appellee accepted the option; (2) and, if so, whether the option required performance as well as acceptance within thirty days; and (3) even if it did not, whether appellee failed without a valid excuse to tender performance.
The decree is affirmed.