114 Ga. 208 | Ga. | 1901
J. and G. K. Wentworth filed a petition in Richmond superior court against Charles Larned and Clarence E. Clark, seeking to compel Larned to specifically perform an alleged contract for the sale of certain land; and, ancillary to the relief sought, they prayed for an injunction against Larned, restraining him from changing the status of the title to the land. No relief was prayed against Clark. On the hearing of the application an injunction was granted, and Larned excepted. Substantially, the facts relied •on to authorize the injunction were these: Prior to January 1, 1900, Larned, a resident of Boston, secured the services of Clark, a real estate agent at Augusta, Georgia, to negotiate a sale of s‘Tuckahoe Plantation” (which is fully described), in Screven county, Georgia, at the price of $9,000. On January 1, 1900, Clark wrote Larned as follows: “ I think at last I have found you a purchaser for ‘Tuckahoe.’ My party wants an option for sixty days at eight thousand dollars cash. As you well know, I do not want
On February 17, Clark wrote Larned as follows: “For the last four or five days the Savannah river has been at its very highest. Tuckahoe has been almost under water and it has been impossible for my man to look it over. He has just called on me and asked me to have his option extended for thirty days. . . If you conclude to do this, wire me at my expense on receipt of this letter.” This request for extension was made at the instance of Dunham, representing the Messrs. Wentworth. On February 20, Clark again wrote Larned, stating that he had not heard from his letter of the 17th; that his man had been to Tuckahoe, but, on account of high water, could not see it, and had come to Augusta on Saturday (the date of the former letter) and asked to have the option extended; that he had left for a point near Tuckahoe, and he (Clark) was to wire him that day (January 20) if he heard from Larned; and begging Larned to grant the extension. On February 23, Lamed wired Clark: “Will extend option to March 15th. Will write,” and on the same day Lamed wrote Clark explaining the cause of delay in answering. On February 23, 1900, Clark exhibited to Dunham Larned’s telegram agreeing to extend the option. Acting on this, plaintiffs had the land examined, and decided to purchase. On March 13, Clark wired Larned: “ My party offers eight thousand cash for Tuckahoe. Answer by wire.” To this telegram no answer seems to have been received. On March 14, George K. Went-worth, accompanied by Lloyd J. Wentworth and Dunham, went to Clark’s office in Augusta and told him that Larned’s offer of sale of Tuckahoe at $9,000 was accepted by the petitioners in this case, and asked Clark, as Larned’s agent, to name the amount of cash to
In reply to Clark’s telegram informing him of the acceptance of the option, Earned wrote to Clark on March 15: “ Your telegram received, reporting sale of ‘ Tuckahoe’ $9,000.00 cash. I am glad you have made the sale. As requested, I send you by registered mail the abstract and seven separate papers for title.” Later on the same day Earned wrote further as follows: “ Since- writing you this morning it has occurred to me to ask how much money the purchaser has put up as part of the purchase-money ? I suppose the full amount (as is the usual custom) will be paid on or within ten days from date.” On March 16, and prior to the receipt by Clark of Larned’s letter of the 15th, Earned wired Clark: “Sent papers
We have from a voluminous record culled the above as the facts-which seem to have been established at the hearing, and which are not materially controverted. Very much other evidence appears;, but inasmuch as, in our judgment, the case on its merits turns upon the question whether the Messrs. Wentworth had so properly exercised their right of option as to entitle them to a conveyance of the land, it has not been deemed necessary to make reference in detail to other portions of the evidence. We have endeavored to arrange (whether successfully or not), in this epitome of the evidence in relation to the action of the parties as to the option and the final contract, the various transactions in chronological order,, so that the controlling features of the case may the more readily appear. A demurrer to the petition was filed by Earned, on a number of grounds; and an amendment was made to the petition, by which the allegation that Earned placed the land in the hands of Clark “to negotiate a sale” was stricken, and an allegation substituted therefor to the effect that Earned placed the land in the-hands- of Clark to sell for nine thousand dollars, with authority to-Clark to make a binding contract of sale by proper writing. The result of the hearing was the grant of an injunction by the judge-in the following terms: “ Without extended discussion . . I think it is established in the case: First, that C. E. Clark was the agent-of the defendant Earned. Second, that said agent was expressly clothed with authority to grant an option on the sale of a plantation called ‘ Tuckahoe,’ situated in Screven county, as well as with authority to make a contract of sale thereof at the sum of nine thousand ($9,000.00) dollars cash; that said authority also embraced power to collect the purchase-price and to deliver the deed when forwarded by the principal; and that, having this latter-power, his agreement as to the particular method of consummating-said cash sale would be binding. Third, that plaintiffs directly and through others had, for a valuable consideration, taken said option,, and before its withdrawal had accepted the terms of the purchase. Fourth, that said contract of sale with Clark, the agent of defendant, sufficiently set forth the three elements necessary to constitute-
Inasmuch as the result of our consideration of the pleadings and evidence in this case brings us to the conclusion that the plaintiffs would not be entitled thereunder to a decree for a specific performance of the contract which they set out, we deem it entirely unnecessary to consider and pass upon the collateral questions raised and insisted on as reasons why the court erred in granting the injunction ; for if the option and the action of the parties thereunder do not make in law a binding contract, it follows that Larned should not be enjoined from making such a disposition of the land as he may see proper. Therefore our consideration of the case will be
From the correspondence leading up to the giving of the option three things are well established: first, that Clark had no legal power to give an option for the purchase of Larned’s land; second, that Earned gave to Clark directly authority to make for him a contract of option for thirty days at a price of nine thousand dollars; and third, that the terms of the option were cash. Under this authority Clark was authorized to give an option to his prospective purchaser, whoever he might be, to purchase the land within thirty days hy the payment of a sum named in cash. But it does not appear that he was authorized in any manner to change the terms of the option • nor does the subsequent correspondence, by which the agent was authorized to enlarge the time in which the right of option could be exercised, enlarge the powers, of the agent in any other respect. On January 22, Clark applied to Earned for an extension of the time limit of the option till March 1, which on January 24 Earned granted by telegram. Then hy its terms the option expired on March 1, at noon. Subsequently, on the application of dark for given reasons, Earned extended the same to March 15. So it is apparent that the only result of this correspondence was, that Earned authorized dark, his agent, to give to a prospective purchaser whom the agent had found, an option to purchase the land for nine thousand dollars cash, which option was to be exercised by March 15. Then, as it does not appear that the agent was authorized by the principal to change or give any other option than the one prescribed by him, the question whether Wentworth exercised his right in sucha manner as to entitle him to a conveyance can only be determined by a consideration of the legal incidents which attach to such a contract. It was ruled in the case of Black v. Maddox, 104 Ga. 157, that such contracts, when founded upon a valuable consideration, were legal and binding on the parties; and when performance of the terms of the contract had been made or offered to be made, a specific per
For the proposition that the option must be exercised within the time limit, or it will be lost, see Longfellow v. Moore, 102 Ill. 289; Mason v. Payne, 47 Mo. 517; Carter v. Phillips, 144 Mass. 100; Kemp v. Humphreys, 13 Ill. 573 ; Potts v. Whitehead, 20 N. J. Eq. 55; Vassault v. Edwards, 43 Cal. 458. In the case of Longworth v. Mitchell, 26 Ohio St. 334, it is said that a limitation of time for which a standing offer is to run is equivalent to the withdrawal of the offer at the end of the time named. Now it appears in the present case, in reference to the acceptance, that on March 14, the day prior to that on which the option would expire, the defendants
Judgment reversed.