55 A.2d 610 | Vt. | 1947
This is an action of contract for the recovery of part of the consideration for an option to purchase real estate. The case was tried by the court with a resulting judgment for the defendant to recover his costs and for the discharge of the trustee. The case is here on exceptions of the plaintiff.
The facts as found by the court, to which no exceptions were taken, show that the plaintiff owned certain premises in the City of Rutland. He gave the defendant an option to purchase the same which was in a writing signed by the plaintiff but not by the defendant who, however, orally agreed to its terms. The consideration for the option was $500.00, to be paid in installments of $200.00 on its execution and $300.00 on or before January 1, 1947. At the time the plaintiff signed the option the defendant paid him the first installment. It was provided in the option that the payments for it were not made on account of the purchase price of the premises but were only payments for the option and that the defendant should acquire no rights in the title of said premises by reason thereof. It was also therein provided that possession of the premises should be retained by the plaintiff until March 15, 1947.
As of the date of the trial of the case, the plaintiff was ready, willing and able to convey the premises to the defendant. The plaintiff had duly performed all of the terms and conditions contained in the option and required of him to be performed. The defendant had failed to pay the second installment of $300.00 and this action was brought to recover the same.
The lower court held as a matter of law that the action was barred by the statute of frauds and that were it not for the statute, the plaintiff would be entitled to recover. Thus the only question *223 for discussion is whether the statute of frauds does act as a bar to recovery.
The material part of the statute, P. L. § 1675, is substantially as follows: An action at law shall not be brought upon a contract for the sale of lands or an interest in or concerning them, unless the contract upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith.
In Durfee House Co. v. Great Atl. Pac. T. Co.,
Although in the Durfee opinion there is language to the effect that an option is not a contract until it is accepted by the optionee, it is apparent from a study of the opinion that this language was not meant to be taken to mean that an option is not a contract within any meaning of that word; that an option is not to be considered an option contract. The question in that case was whether the option there under consideration passed to the optionee any legal title to the premises. It was held that it did not as it had not at the time material been accepted by the optionee and thus had not become a completed contract, such a contract being necessary to pass legal title. Thus it is apparent that all that is meant in that case is that an option is not a completed contract to sell and convey until acceptance.
Few cases can be found which decide whether an option to purchase real estate is such a contract as the statute of frauds requires to be in writing. See Anno. 61 ALR at page 1454. *224
In the case of Neely v. Sheppard,
The contrary is held in Richanboch v. Ruby,
The trial court in its rulings of law held that "The option is a contract for the sale of the `exclusive right or privilege to purchase' certain land. This is an interest not `in' but nevertheless `concerning' lands, and is therefore within the bar of the statute."
An exception was taken to this ruling which under the authority of Neely v. Sheppard and other cases, supra, with similar holdings is overruled, as we believe that these cases correctly state the law to be here applied.
The plaintiff stresses the fact that by the terms of the option in question the defendant was to "acquire no rights in the title of the premises by reason thereby" in support of his claim that no interest in or concerning land was conveyed by the option. But, as we have seen, one does not gain any such rights under an option contract until the same is accepted though the language of the option does not expressly state this to be so. *225
The plaintiff says that even though the option contract comes within the statute he has the right to recover because he has fully performed his part of the contract. In support of this claim he relies on the findings to the effect that he was at all times material ready, willing and able to convey the premises and that he had performed all of the terms and conditions of the option required of him to be performed.
We have repeatedly held that performance similar to that here relied on will not take a case out of the statute. Such a holding is to be found in the recent case of Carvage v.Stowell,
What we have said in respect to the plaintiff's claim of performance taking the case out of the statute disposes of his remaining exceptions to the rulings of law made below.
Judgment affirmed.