Prior to August 7, 1908, plaintiff was the owner of a judgment against the Wild Rose Coal & Mining Company, and defendant Rankin was the owner of two judgments against the same company. The coal company owned a twenty-acre tract of land, on which were located certain mining or tenement houses. There was a coal shaft on this land or the adjoining land. The company had leases to other lands. Neither plaintiff nor defendant Rankin owned the property at that time. It was claimed by Rankin that his judgments were prior liens on the coal company’s properties, to the lien of the plaintiff, and this seems to have been conceded by plaintiff.
In fact it is conceded by appellant in argument that appellant’s ease rests upon the construction of Exhibit B, and whether appellant’s rights thereunder had expired at the time of the trial. Exhibit B is as follows:
Exhibit B.
This memoranda of agreement witnesseth that for and in consideration of the payment of the sum of one hundred dollars by the 3d day of November, 1909,1 agree to give to O. F. Peterson an option to buy my holdings at the mine and mining property known as Morgan Yalley, for the sum of $1,400.00, at any time within thirty days from that date, time being the essence of this agreement, and, if the said Peterson elects to purchase said property within said time, I agree to give him or to whom he may direct in writing a special warranty deed to the real estate and a bill of sale to the chattel property, and an assignment of the judgment I own or cancel it of record, as directed, on the payment of $1,400.00, and deducting from said amount the amount of $100.00 paid for this option, provided that said money is paid by said time limit, or by December 3, 1909, and it is agreed and understood that, if the said O. F. Peterson should fail to exercise his rights under this option and make payment as specified herein, then said money paid by said Peterson for the option hereon shall be forfeited*434 to said W. W. Rankin as liquidated damages. This contract to be deposited with the Commercial Savings Bank of Des Moines, Iowa, signed by said W. W. Rankin, and to be turned over to said O. F. Peterson on his signing and on his paying to said bank to be sent .to said Rankin the said sum of $100.00, and, if the said $100.00 is not paid by said November 3, 1909, the said bank to return same to said Rankin.
Dated this October 29, 1909, at Ottumwa, Iowa.
W. W. Rankin.
O. F. Peterson.
Plaintiff was present when the property was sold to Rankin at sheriff’s sale. Rankin obtained a sheriff’s deed. Rankin sold the property to defendant Hunn about March, 1910. Hunn was made a party defendant; plaintiff claiming that he had notice of plaintiff’s rights. This sale to Hunn was made after December 3, 1909, the time when it is claimed by Rankin that the option or contract, Exhibit B, had expired.
2. Specificperformance: evidence. Plaintiff did not perform his part of the contract by December 3, 1909, nor at any time, though he says he offered to do so upon condition. Plaintiff testifies that he told the defendant Rankin the money was ready any time he, Rankin, stopped Hunn taking the , , , __ .. „ . houses off the property, we do not find m the record that plaintiff fixed any date when, he so told Rankin, whether before or after December 3, 1909. It appears that Hunn did move one or two houses, and plaintiff testifies, in a general way, that they were moved from the twenty acres in controversy. But Hunn owned land adjoining this twenty acres, and testifies that he had a survey made, and that the houses he moved were not on the twenty acres, but were on his own land. We think the weight of the evidence is with defendants on this point; at any rate there was a conflict in the evidence, from which the trial court may have so found, if it is at all material. Defendant then was offering to perform either before or after December 3, 1909, upon condition that Rankin 'stopped Hunn from mov
The real contention of plaintiff is that the option or contract, Exhibit B, was extended by a letter, which is as follows:
Exhibit H.
Ottumwa, Iowa, Jan. 19, 1910.
O. F. Peterson, Des Moines, Iowa — Dear Sir: I am informed that Hunn has removed one of the buildings from off the land at Morgan Yalley, and that he is going to take two more. I wish you would go and see him, and, if he is going to attempt any such thing, let me know, and I will commence an injunction against him at once. Unless he says positively that he will let them alone, I will bring suit. He knows he has no right to them, and is only taking this advantage of me because I am not there and to protect myself. He knows that he never put those houses there, and has no right to them; besides, we have been in possession of the ground on which these stand for more than ten years. I will never think that any of the houses are on his ground until the land is surveyed, and, if he thinks they are tell him that I will join with him and have the county surveyor to survey the land. This he has never done, and if he has he has never been the man to let me know when he was going to do it so I could be there and see it done. I wish you would see him at once, and let me know what he says. I tried to get him by phone this morning, and they said he was sick, and they could not get him. Please attend to this at once. How are you coming along with your deal? Respect. [Signed] W. AY. Rankin.