125 Ky. 585 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
These eases involve a common principle of law, viz., the binding force, of an option to sell real estate. The.options describe the land, and recite a consideration of $1 paid. They obligate the owners of the soil to convey the coal in the land by general warranty deed to the optionee within a specified future period, on notice by the optionee to the owners of the acceptance of the option and the payment of $5 per acre cash. During the life of the options the optionee did accept their terms, notified the owners thereof, and tendered the contract price recited in the options. The owners having refused to accept the money or to convey the lancjs, these actions were brought by the optionees to haye a specific execution of the contracts. Demurrers were sustained to the petitions, on the ground that the contracts were unilateral, lacking in mutuality, and unenforceable, and the petitions were dismissed.
It is generally said that one essential of every executory contract is mutuality of obligation and remedy. That there must be mutuality of obligation, by which is meant an undertaking on one side and a consideration upon the other, is true always. But it is not true always that there must be mutuality of remedy. One example is a contract for a sufficient consideration between an adult and an infant may be
The consideration for the agreement to give the optionee the definite time within which to exercise his choice, called the “option,” is in these eases, the
This conclusion is reached after a careful consideration of the eases heretofore in this court and of the state of authorities elsewhere. The great weight of authority, and what seems to us to be the right of the matter, is in favor of upholding and enforcing such contracts. While formerly there was a marked difference of opinions as to the validity of pure options, there seems to have been but little divergence among the courts as to the enforcibility of such options when connected with leases. -However, this court in its early history took the contrary view in Boucher v. Vanbuskirk, 2 A. K. Marshall (Ky.) 345. But in. the later case of Bank of Louisville v. Baumeister, 87 Ky. 12, 9 Ky. Law Rep. 845, 7 S. W. 170, and Bacon v. Ky. Cent. Ry. Co., 95 Ky. 373, 16 Ky. Law Rep. 77, 25 S. W. 747, the principle of the Boucher-Vanbuskirk case was repudiated. The real underlying principle of the case where the option is given as part of a lease, and is enforced, is that it was based upon a sufficient valuable consideration. Therefore any other sufficient valuable consideration ought to support an option contract to sell. In Litz v. Groosling, 93 Ky. 185, 14 Ky. Law Rep. 91, 19 S. W. 527, 21 L. R. A. 127, the option in suit was substantially the same as those now under consideration. It does not appear that the court considered the effect of an acceptance of the option during its term and before its withdrawal by the owner of the land. The
Nor do we say now that such an option is enforceable as to the terms of the option (independent of the terms of the contract to sell the land); that is to say; the owner could not be compelled to keep the option open for acceptance for its full term, and that is the only contract embraced in the. option; strictly speaking. The other contract; the one to buy the land, is yet to be consummated, and is not a contract at all until it is accepted within the time and terms stated in the agreement. "What was said in Litz v. G-oosling; supra, as to the binding validity of the option without consideration, is adhered to; but, if it should be deducible from the opinion that it was also intended to hold that the optionee could acquire no right in the contract by accepting it during its term and before notice of its withdrawal, then we disavow the principle, and to that extent the ease will no longer be regarded as authority.
The judgment in each case is reversed, and each cause -is remanded, with directions to overrule the demurrers and for proceedings not inconsistent herewith.