161 S.E. 612 | W. Va. | 1931
This is a suit by an optionee for specific performance of an option to purchase real estate.
By contract in writing, dated February 17, 1926, defendant, J. H. MacQueen, leased to plaintiff, T. C. Rutherford, a brick storebuilding in the town of Pax, Fayette county, for a term of five years, at $50.00 per month, and granted to the lessee the exclusive right to purchase the property at any time within the term of the lease for $3,500, with interest from the date thereof, plus taxes, insurance and necessary expenses of maintenance, with interest, less rents, with interest, paid under the lease. On December 15, 1927, the building, which had been insured in the name and at the expense of the lessor, was materially damaged by fire. Thereafter, he collected under the policies of insurance, $3,712.12, as the estimated cost of repairing the injury. Rutherford testified, in effect, that a week or two after the fire he verbally notified MacQueen of his election to purchase the property under the terms of the option; that they then agreed the repairs would be made by *354 him, under the supervision of his father, and, after deducting the cost thereof, he would pay to MacQueen the balance of the purchase price as fixed by the option. The repairs were accordingly made by Rutherford at a cost of $2,387.01. Specific performance of the option was decreed.
The real question complained of and the only one of which there is just cause for complaint involves the ruling of the circuit court in holding that the plaintiff is entitled to the benefit of $3,500.00 of the insurance. The appellant denies the right of the optionee in an option of real estate to share in money collected under fire insurance on the property in the name of and paid for by the optionor for fire occurring before the exercise of the option. The appellee relies uponWilliams v. Lilly,
A decree will, therefore, be entered by this Court affirming the judgment of the circuit court in so far as it directs the specific performance of the contract and the delivery by defendant *355 to plaintiff of policies of insurance on the property; reversing the decree in so far as it gives plaintiff the benefit of the insurance to cover the cost of repairs to the building; and for judgment in favor of defendant against plaintiff in the sum of $1251.44, with interest thereon from the 13th day of November, 1930; the increase in the judgment as here directed to be the difference between the amount of the insurance credited to Rutherford ($3,500.00) and the cost of the repairs amounting to $2,387.01.
Affirmed in part and reversed in part, and judgment entered.