Synes Appeal
Opinion by
This action, tried in the court below without a jury, involved an appeal from an award of viewers in eminent domain proceedings. Exceptions to the court’s decree were concerned only with the conclusions of law, the facts not having been in serious dispute. Said exceptions were dismissed and this appeal followed.
In June, 1952, W. Marshall Hughes submitted the highest bid for four hundred forty-four acres of land exposed at public sale by the Institution District of Berks County. An agreement of sale was drawn up and later approved by the quarter sessions court. On September 26, 1952, a deed of conveyance was delivered and recorded. The grantee in the deed was W. Marshall Hughes & Son, Inc.
On September 12, 1952, W. Marshall Hughes and his wife, Margaret, entered into a written agreement with Harry M. Synes, appellant, with reference to a proposed subsequent purchase by Synes of approximately fifteen acres of this same plot. While it appeared that Synes negotiated in an individual capacity, he did, in fact, represent an undisclosed principal, his employer, Food Fair Stores, and he intended to assign later all of his interest in the agreement to his principal.
This contract, designated “Agreement of Sale,” specified a purchase price in the amount of $60,000; $9000
The land involved was subject to borough zoning regulations restricting its use to residential purposes only. The parties agreed to exert their best joint efforts to cause these zoning regulations to be lifted so as to permit the erection on the land of a large retail super-market and adjacent parking lot. It was at all times mutually understood that the land involved would remain perfectly unattractive to Synes, so long as it remained restricted.
No specific calendar date for final settlement was mentioned. The agreement (Par. 15) stipulated that, if the desired rezoning were effected and legally concluded, final settlement would be held within ten days thereafter and possession delivered immediately. If, however, (Par. 16) the rezoning efforts failed, either through lack of municipal action or court litigation, then Synes would have the option to purchase within twenty days or to consider the contract null and void and receive back the money already paid.
Efforts to effectuate the rezoning never succeeded and the matter remained in status quo.
On March 8, 1954, the Governor Mifflin Joint School Authority condemned a portion of the four hundred and forty-four acres of land owned by W. Marshall Hughes & Son, Inc., and also included in that condemnation was the entire plot involved in the Synes contract.
Viewers were appointed on September 20, 1954, and awarded W. Marshall Hughes & Son, Inc., damages in the amount of $110,000 and damages to Synes in the amount of $804. Synes appealed to the common pleas court. The joint school authority also appealed. On January 8, 1955, before trial, the authority paid to W. Marshall Hughes & Son, Inc., the sum of $100,000
Hence, the crux of this appeal lies in whatever rights, if any, passed to Synes by virtue of the agreement. He urges that the writing was an agreement of sale whereby he became the equitable owner of the land and that he enjoyed this status as of the date of the condemnation.
The pertinent principles of law are clear. In
Powell Appeal,
After a contract for the sale of real estate is duly executed, the purchaser is the equitable owner thereof, entitled to all advantages that may thereafter arise, and responsible for all loss that may befall it. This legal principle, recognized early by this Court in
Reed v. Lukens,
In appellant’s own brief, we find the following rather significant observation: “(P)aragraph 15 compelled Purchaser to complete the transaction
if the premises were zoned for such
(commercial)
use. . .
,”
1
They never were. We think that, when this agreement is examined in the light of the circumstances which prevailed at the time of its creation, it must be clear that, upon the happening of the contemplated rezoning, “Seller” would have been bound to convey and “Purchaser” to pay. That this is so we are assured by Paragraph 19 of the agreement which stated: “19. In the event the Purchaser fails to make settlement as herein provided, the sum or sums paid on account are to be retained either (a) as payment on account of the purchase price by Seller who shall have the right to collect the balance of said purchase price by suit in assumpsit or for specific performance. . . .” But, in the
An option is both itself an enforceable agreement and an offer. The latter is intended to be accepted by notice from the optionee of his election to accept. This Court in
Cardon’s Estate, 278
Pa. 153, 158,
In 12 Am. Jur., Contracts, §27 (1938) the following analysis appears: “The view is taken that the option consists of two elements, one, the offer to perform a certain act, such as to sell property, which is an uncompleted contract until it is accepted, and the other, the agreement to give the optionee a certain time within Avhich to exercise his option of accepting.”
On the basis of the above authorities and after a careful reading of the agreement itself and a review of the relative rights and obligations of the parties just prior to the condemnation, we hold that, there having
However, a claim by appellant is also made against appellee authority for damages sustained by him because of the loss of his right to elect to purchase. In other words, as of the date of condemnation, Synes could still have hoped, but for the condemnation, for a future rezoning. In the absence or failure of a reclassification, he could nevertheless have elected to purchase. But the condemnation prevented this and, therefore, destroyed a valuable right he possessed. At the trial, he repeatedly attempted to offer testimony with respect to the value of the land. This was rejected because he lacked title to the premises. He was advised that he could give testimony with respect to the value of the
option
he had held and which the condemnation had destroyed. The lower court concluded that Synes should receive nothing for this loss because (1) by accepting the return of his purchase money, “down payment,” he had elected to consider the agreement void and (2) he adduced no proof at the trial of its worth. We cannot agree that the acceptance of the return of the $9000 down payment worked an election to cancel the agreement. His acceptance of this money took place
We accordingly remand this case for a hearing limited to a determination of the value the option, as such, possessed.
Judgment reversed and record remanded with a procedendo.
Notes
Emphasis, ours.