Smith v. CauthenSmith v. Cauthen
delivered the opinion of the court.
Thе appellant, Smith, executed the following option: ‘ ‘ Canton, Mississippi, August 17,1909. This is to certify that I have optioned to A. H. Cauthen, in consideration of one dollar and his listing and advertising my property for sаle, the following described real estate, to-wit: lot 14, lots 16, 18, 201, 22, on the north side North street, and east оf I. C. R. E. track, and being all the property I own N. of N. St., E. of R. R., and includes my brick plant, with all equipment as it now stаnds for the manufacturing of brick, and containing about 8 acres, in Canton, Miss. The above does not include live stock and wagons, also 600,000 brick, wood amounting to -$500.00, and coal amounting to $100.00'. The said A. H. Cauthen, or his assigns, shall have the exclusive right to purchase
After the execution of this option, the apрellee advertised the brick plant in question for sale. Later on he advised appellant that he could not get eight thousand dollars for the plant, but could get seven thousand dolJars, and urgеd him to take this amount and to give him a fee of two hundred dollars or three hundred dollars for closing thе deal.' This offer was not accepted by the appellant, and thereafter apрellee advised appellant that he had resold the property for eight thousand dollаrs, but would make nothing on the deal, and tendered Mm a deed to be signed; but there arose some misunderstanding about what brick were to be included in the sale, and appellant refused to sign the deеd. Thereafter appellee brought suit for breach of contract, for the sum of fifteen hundred dollars damages, alleging that he had resold the property for nine thousand five hundred dollars. Frоm a judgment for the amount sued for, the defendant appeals, alleging as errors, among othеrs, the granting of instructions Nos. 2 and 4, which are as follows:
“No. 2. If you believe from the evidence that Cаuthen paid a vailuable consideration either in money or personal services to Gаrner Smith for the option in evidence, Garner Smith had no right to withdraw the same until the 24th day of Decembеr, 1909, the time at which the same was to expire.”
(1) It is manifest that the real consideration for the option was the listing and аdvertising of the property for sale by Oauthen, the $1 being merely nominal. Where the consideration for an option is the performance of certain acts, until such acts are performed the promise to convey is not binding upon the promisor and is revocable at his pleаsure; but when such acts are performed, the consideration arises and the promise to convey then becomes irrevocable. 21 Am. and Eng. Ency. Law (2d Ed.) This view is not in conflict with any of our decisions. In Kolb v. Bennett Land Company,
(2) The granting of instruction No. 2 for appellee was error, for the reason that it advised the jury that the one dollar, if paid, would constitute a sufficient consideration for the option. (3) The tеrm “personal services” contained in this instruction is also misleading, but we would not reverse for that alone.
(4) The court also erred in granting appellee’s instruction No. 4. When appellee claims to have accepted appellant’s offer to convey, he told appellant that the appellee had resold the property for eight thousand dollars, аnd consequently would make nothing by the deal. Loss of profits, therefore, cannot enter into the measure of appellee’s damages, for the reason that appellant, in
Reversed and remanded.