164 Ky. 733 | Ky. Ct. App. | 1915
Opinion op the Court by
Affirming.
The appellant, Stamper, claims that $5.00 an acre was the fair value of the land at the time the contract was made with the North Fork Coal & Timber Company by appellees, and that the coal and timber company would have elected to exercise the option within the life of it, by surveying the land and paying the price agreed upon, but for the fact that the appellees forcibly prevented its surveyors from surveying the lands by putting them in fear of bodily harm, and that he purchased the contract from the coal and timber company on the first day of November and that it was assigned to him on that day, he paying to the coal and timber company $50.00 for it; that he did not have the contract at the time he undertook to survey the lands, because it had been sent to him by mail, and addressed to a postoffice other than the one at which he received his mail; that' it was in full force on the áth day of November, and that he could have surveyed the lands and paid the price according to the contract on that day, but that appellees proposed to him to sell him the timber, and at their request, he stopped the survey and accepted the deed, and
The court below adjudged that the deed be cancelled, and that appellees pay to appellant the sums which he paid out in the transaction, with interest, and adjudged that this sum be a lien upon the timber in controversy.
The writing executed by the appellees to the North Fork Coal & Timber Company was a mere offer upon .the part of the appellees to sell their lands at $5.00 per acre, and to convey them to the coal and timber company, within six months from the date thereof. There was nothing in the writing which bound the North Fork Coal & Timber Company to accept the offer or to complete the transaction to purchase and pay for the land. The writing contains two elements, an offer to sell, which does not become a contract without an acceptance, and the other to leave the offer open for six months, which was a complete contract. This complete contract, by the terms of which the North Fork Coal & Timber Company was to have six months from its date in which to make an election to accept the offer to sell the land, in order to be binding upon appellant, must have necessarily have been supported by a valuable consideration. The consideration supporting the contract was one dollar, in hand paid. This is no substantial consideration to support a contract giving one six months’ time in which to determine whether he will accept an offer to purchase 300 acres of land, in a community where values are rising rapidly. It is merely nominal. To make the offer to sell the lands a contract binding upon appellees, it was necessary for the holder of the writing to have given them notice of an acceptance of the offer, and to have ascertained the price by a survey of the lands, and a tender of the price of it, within the time specified in
The. option given the assignor of appellant by the appellees prescribed as conditions for its acceptance, that the optionee would pay to appellees $5.00 per acre for the land; after ascertaining its acreage by a survey, within the life of the option.
In 39 Cyc., 1238, the rule prescribed for the acceptance of an offer to sell lands, embraced in an option contract, is: “The acceptance of the option, or the election when made, must be unqualified and unequivocal, must be communicated to the party giving the option, in no uncertain manner, and be such that after it is exercised, it becomes binding upon the party exercising it. ’ ’
There is no pretense that the North Fork Coal & Timber Company ever accepted the offer, or ever put itself in a position, that it could have been required to accept a conveyance for the land or to pay for it. It at no time ever gave the appellees any notice to that effect. It is true, that in the month of October, before the expiration of the time, in which it had to exercise the option, it sent a surveyor to the lands with the purpose of having same surveyed, but failed to notify appellees that it would accept the offer to buy the lands or pay for same, after the survey should have been made. Appellant insists that the appellees put the surveyor in fear, and' prevented him making the survey. The proof, however, does not sustain this contention. The testimony of the surveyor and those with him, is only to the effect that appellee, William Combs, said that he did not want the land surveyed, and that he wanted to be rid of the option, and it should not be surveyed if he could prevent it. The fears, which overtook the surveyor, seem to have been caused by loose talk of some of the neighboring people. The fact that appellees quietly submitted and made no offer of resistance when appellant came and proceeded to survey the lands, shows that the fears of the surveyor were groundless.
The option being a mere offer to sell and the contract to keep the offer open for acceptance for six months being without substantial consideration, the appellees could withdraw the offer and repudiate it at any time, by conveying notice of their repudiation of it to the holder of it, before its acceptance, and thereafter the holder would be without authority to accept or exercise it. Thompson v. Reid; Noble v. Mann, supra; 39 Cyc., 1236.
The proof shows that the agent for the North Pork Coal & Timber Company sought out the appellees to procure the option from them, and it is proven by one of the attesting witnesses to it and another present, that he had great difficulty in procuring its execution, especially by appellee, Mahala Combs, and only succeeded after a great deal of talking and persuasion. Before the agent got away from appellee’s home, the appellee, William Combs, had repented of the transaction, and offered to return the dollar, which had been paid to him for the option, and requested the return of the paper to him, but the agent represented that he would return in a short time, and thus left them. It seems that appellees became satisfied and anxious for the option to be taken up, and so continued for about one month, when they again became dissatisfied, and attempted to repudiate it by posting notices upon the land, forbidding the optionee from having it surveyed. The proof fails to show that knowledge of this ever came to the optionee. However, when the surveyor for the coal and timber company was at the home of appellees in October, the appellees objected to him surveying the land, and by their request, promised appellees that he, and those with him, would inform the president of the company, by telephone, of • appellees ’ determination not to abide by the arrangement, but at that time he could not reach the company’s president by the telephone. It is very evident, however, that he delivered the message to the president of the company, at once, in some other way, because the appellant testifies that when he undertook to buy the option, about the 20th of October, that the president of
In Noble v. Mann, supra, Mann bad given an option, similar to tbe one in tbe case at bar, to Noble, upon bis tract of land, to run for one year. About one month after, Mann sold and conveyed tbe land to Little. This court said: “Tbe contract sued upon was an option without consideration. Mann bad tbe right at any time before its terms were complied with by tbe optionee to withdraw tbe proposition contained in it. His sale and conveyance to Littl.e was a repudiation of bis option, and as be bad a right to withdraw it, it does not matter what bis motive was, nor as to Little’s knowledge of tbe terms.” It does not appear that in this case Noble bad any knowledge of tbe sale of tbe land by Mann until after it was done, nor bad be any notice of tbe revocation by Mann of the option.
Tbe option having been withdrawn before appellant’s purchase of it, there was no offer on tbe part of appellees for bim to accept for a sale of their lands as be bad full knowledge of tbe revocation, and so bad bis assignor.
Tbe value of tbe timber trees embraced in tbe deed from appellees to appellant was variously estimated by tbe witnesses to be from $800.00 to $2,000.00, and tbe court below found them, as a matter of fact, to be of tbe value of $900.00. Tbe proof shows that appellees are both very weak, illiterate, and ignorant persons. They bad made efforts to buy other land for a home, but bad failed,-and believed that appellant could exercise tbe option, and take tbe lands from them, by paying tbe price of $5.00 per acre, which was largely less than it was worth. Tbe appellant was a prominent man, a justice of tbe peace and a shrewd man. He came with surveyors 'on tbe 3rd day of November and proceeded to commence to survey the lands, but it is evident from tbe proof, that tbe survey could not have been completed before tbe expiration of tbe option by lapse of time. Appellee says that appellant, on tbe 1st of November, informed bim that be bad bought tbe option, and was going to exercise it by taking the land, but at tbe same time proposed to take tbe timber and leave tbe land for appellees. Appellant cannot remember which first pro
Without discussing, or setting out all the facts and circumstances, in evidence, which go to support the judgment below, suffice it to say, the evidence tends strongly to support the opinion of the chancellor. He was acquainted with the parties and witnesses, and had better opportunity to know the weight to be attached to their statements than we have, and it appearing that his judgment did substantial justice between the parties, it will not be disturbed.
The judgment is affirmed.