Thomason v. . Bescher
97 S.E. 654
N.C.
1918
Check Treatment
Hoke, J.

It is the accepted principle of the common law that instruments under seal require no consideration to support them. Whether this should rest on the position that a seal conclusivеly imports a consideration or that the solemnity of the act imports such reflection and care that a consideration is regarded as unnecessary, such instruments are held to be binding аgreements enforcible in all actions before the cemmon-law courts. •

Speaking to the question in Harrell v. Watson, 63 N. C., 454, Pearson, C. J., said: “A bond needs no consideration. The solemn act of sealing and delivering is a deed — a thing done which, by the rulе of the common law, has full force and effect without any consideration. Nudum pactum applies only to simple contracts.”

A similar position is stated with approval in Prof. Mordecai’s Lectures, at p. 931, and Dr. Minor in his Institutes, pt. 1, vol. 3, p. 139, says: “In all сontracts under seal a valuable consideration is always presumed, from the solemnity of the instrument, as a mattér of public policy and for the sake of peace, and presumеd conclusively, no proof to the contrary being admitted either in law or equity so far as the parties themselves are concerned.”

While there is much diversity of opinion on the subjeсt, we think it the better position and sustained by the weight of authority that the principle should prevail in reference to these unilateral contracts or options when, as in this ease, they take the form of solemn written covenants under seal, and its proper application is to render them binding agreements, irrevocable within the time designated, and that the *626 stipulations may bе enforced and made effective by appropriate remedies when suclr time is reasonable ‍​‌‌‌‌‌‌​‌‌‌​‌​‌​​‌​​‌​‌‌​‌​​​​​‌​‌‌​​‌​‌‌‌‌​‌‌‌​‍and there is nothing oppressive and unconscionable in the terms of the prinсipal contract.

In Watkins v. Robertson, 105 Va., 269, the question is directly presented, and in a convincing and learned opinion by Judge Cardwell the conclusion of the Court on the subject is announced to the effect: “That an оption under seal for the sale of shares in a joint stock company is a binding offer from which the promisor cannot recede during the time stipulated for in the option, and if accepted during that time constitutes a contract the specific performance of which a court of equity will compel. The option is in the nature of a continuing offer to sell, and, bеing under seal, must be regarded as made upon a sufficient consideration, and no proof to the contrary will be received at law or in equity.”

In Willard v. Tayloe, 75 U. S., 557, Associate Justicp Field, delivering the opinion, it was held, among other things: “A covenant in a lease giving to the lessee a right or option to purchase the premises leased at any time during the term is in the nature of a continuing offer to sell. The offer thus m'adе, if under seal, is regarded as made upon sufficient consideration, and therefore one from which the lessor is not ■at liberty to recede.” And the position is approved by other courts of the highest authority and by writers of established repute. O'Brien v. Boland, 166 Mass., 481; Weaver v. Bunn, 31 W. Va., 736; McMillan v. Ames, 33 Minn., 257; Pomeroy on Contracts, sec. 387, note 1; 9 Cyc., 287.

In the citation to Pomeroy, a work of recognized merit, chiefly on the doctrine of specific performance, it is said in the note referred to: “If the unilateral contract is sealed and the common-law effect of the seal has not been taken away or сhanged by statute, it appears that the promissory offer contained in the writing cannot be recalled before the time for acceptance has expired.” ‍​‌‌‌‌‌‌​‌‌‌​‌​‌​​‌​​‌​‌‌​‌​​​​​‌​‌‌​​‌​‌‌‌‌​‌‌‌​‍And in 9 Cyc.: “The common-law rule that when an offer is made under seal it cannot be revoked, applies to options given under seal. The seal renders a consideration unnecessary, and if the option is exercised by acceptance of the offer within the time limited the agreement will be specifically enforced or damages may be recovered for its breach nоtwithstanding an attempted revocation.”

We are not unmindful of the position that in equity causes the Court-looks beyond the form and will usually refuse to exert its powers in aid of a sealed instrument, its collection and enforcement, except when there is a valuable consideration. In our own Court, the case of Woodal v. Prevatt, 45 N. C., 199, being an apt illustration of the principle. But these optiоns, containing a continuing offer to sell and constituting a contract, binding on the parties because in the form of a covenant under seal, serve their purpose in keeping the offеr open for *627 the time specified and preventing a withdrawal by the vendor. On acceptance and offer to perform within the time, a bilateral contract is then constituted which, on breach, is enforcible by appropriate remedies, legal or equitable. And in case of action for specific performance, the consideration is not restrictеd to the seal or the nominal amount usually present in these bargains, b'ut extends to and includes the purchase price agreed upon. This position is recognized with us in the case of Ward v. Albertson, 165 N. C., 218 and 222.

Bpeaking to the subject, the Court said: “In reference to the $5 paid by plaintiff as the consideration for his interest, it is the accepted position in this State that ‘a binding contract to convey land, where there has been no fraud, mistake, undue influence, or oppression, will be specifically enforced, and, as a rule, the mere inadequacy of price, without more, will not affect the application of the principle’ (Combes v. Adam, 150 N. C., 64, citing Boles v. Candle, 133 N. C., 528, and Whitted v. Fuquay, 127 N. C., 68); and where the contract has been perfected by acceptance within the time or proper tender of performance,- on suit for specific performance, the real consideration is the contract price, which must be paid before the interest is -finally acquired, in this instance the $1,000, ‍​‌‌‌‌‌‌​‌‌‌​‌​‌​​‌​​‌​‌‌​‌​​​​​‌​‌‌​​‌​‌‌‌‌​‌‌‌​‍and as to the option itself, which only provides for holding the privilege open for a short period of time and involving also the opportunity to effect a sale by the potentiаl vendor, the $5 paid may very properly be held as a sufficient consideration to bind the party (Alabama Ry. v. Long, 158 Ala., 301; Ross v. Parks, supra; Smith v. Bangham, 156 Cal., 359; Elliott on Contracts, sec. 232.) ; and there is high authority for the position that in States where this matter has not been regulated by statute, the seal itself conclusively imports a consideration. Watkins v. Robinson, 105 Va., 269; Willard v. Taylor, 75 U. S., 557; Adams v. Canal Co., 230 Ill., 469.” And the statement, we think, presents the correct concept of these suits and is in accord with thе authorities on the subject.

On the same question in the McMillan v. Ames, 33 Minn., supra, Vanderburg, J., delivering the opinion, said: “It is true that equity will not lend its auxiliary remedies to aid in the enforcement of a contract which is inequitable, or is not supported by a substantiаl consideration; but at the same time it will not on such grounds interfere to set it aside. But no reason appears why equity might not have decreed specific performance in this ease (had the land not been sold), because the substantial and meritorious consideration required by the Court in such ease would consist in that stipulated in the instrument as the condition of a conveyance, performance of which by the plaintiff would have been exacted as a prerequisite to relief so as to secure to defendant mutuality in the remedy and all his rights under the cоntract.” And *628 see, also, Woodruff v. Woodruff, 44 N. J. Eq., p. 349; 6 Pomeroy’s Eq., sec. 773.

As heretofore stated, there are opposing decisions on the question, holding that a written option without valuable consideration, though under seal, may be recalled at any time before notice of accejitance given. Some of these, as pointed out in Watkins v. Robertson, supra, are dependent on statutes which change or modify the effect given to seals under the principles ‍​‌‌‌‌‌‌​‌‌‌​‌​‌​​‌​​‌​‌‌​‌​​​​​‌​‌‌​​‌​‌‌‌‌​‌‌‌​‍of the common law. In others, there being nothing in the record tо present it, the mind of the Judges was not specially called to the distinctions existent and usually observable between a mere offer to sell without consideration and without seal and onе that is effective as a binding agreement by reason of the seal. This is true in several cases in our own Court, as in Timber Co. v. Wilson, 151 N. C., 154, and Paddock v. Davenport, 107 N. C., 710. In both of these cases, however, it appears that there was noticе of acceptance duly given within the time, thus constituting a bilateral contract between the 'parties, and the question of the effect of a seal on such contracts was in no wаy presented; and so in the well-considered case of Winders v. Kenan, 161 N. C., 628, there was a valuable consideration for the option, and relief was denied because there was no offer to perform within the time as the contract required.

So far as examined, we have found no case with us in which the question has been directly considered, and under the principles stated and on thе facts of this record we are of opinion, and so hold, that the defendants are bound by their covenant under seal and not at liberty to withdraw their offer before the expiration of thе time agreed upon.

The verdict having established that before any attempted withdrawal by defendants, plaintiff had notified one of the parties of acceptance would in any еvent be entitled to judgment as to that interest. And it further appearing that plaintiff ‍​‌‌‌‌‌‌​‌‌‌​‌​‌​​‌​​‌​‌‌​‌​​​​​‌​‌‌​​‌​‌‌‌‌​‌‌‌​‍has been at all times ready and able to-comply, tendering the entire purchase money, at latest by 7th August, that defendants refused to accept the same and deny any and all obligation under Uie alleged contract, plaintiff, as held in Ward v. Albertson, supra, and other cases of like import, is entitled to have specific performance as to both interests, and the judgment to that effect is affirmed,

No error.