153 Pa. 646 | Pa. | 1893
Opinion by
On the fourteenth of July, 1890, the defendant, William W. Richards, and William H. Yerkes, agent, made an agreement known as an “ option ” for the purchase of a tract of 45.5 acres of land in Upper Merion township, Montgomery county.
Richards covenanted to convey to Yerkes, agent, or his assigns, on or before the 1st day of January, 1891, the tract of land. Yerkes, agent, covenanted to pay therefor the sum of five thousand four hundred dollars ($5,400), twenty-nine hundred dollars on delivery of deed, and the balance, twenty-five hundred dollars, in one year, with interest at five per cent. Then follows the optional clause in these words :
“ Provided, however, and it is hereby expressly understood and agreed, that this contract shall be null and void and of none effect as to either party, the same as if the said contract had never been made, if the said purchase money shall not be paid on or before January 1, 1891.”
The agreement was sealed by William W. Richards, executor, and William H. Yerkes, agent, and delivered to Yerkes.
On the 9th of September, 1890, Yerkes made a legal tender to Richards of the whole consideration, five thousand four hun
The plaintiff, in his statement of claim under the procedure act of 1887, sets out in full: (1) The articles of agreement. (2) Willingness and offer to pay, and the tender of September 9, 1890. (3) Refusal of defendant to receive the money and execute conveyance. (4) That defendant, for purpose of obtaining greater price, had sold and conveyed the land to one Samuel Moore. (5) An averment that by reason of this breach of contract, plaintiff had sustained damage in amount of twenty thousand dollars.
To this statement defendant pleaded non assumpsit, and also filed affidavit of defence, and on the issue thus made up they went to trial before court and jury.
The plaintiff’s first and only witness was William H. Yerkes, who testified, among other matters, that he purchased the property as agent for his wife, Emily Irene Yerkes; then an offer was made of the agreement. To this offer the defendant objected on the ground of want of mutuality between the parties, and because no right of action had been shown in Emily Irene Yerkes. The court sustained the objection, and also ruled out any evidence of the breach of contract by defendant or of damages sustained by plaintiff, and entered a compulsory nonsuit. Plaintiff afterward moved to take off the nonsuit; this the court, in an opinion filed, refused to do. Thereupon the plaintiff took this writ, assigning for error: (1) The rejection of the agreement. (2) the refusal of the court to take off the nonsuit.
The action of the court in each instance was based on the ground of want of mutuality in the contract. It was assumed that as the plaintiff, William H. Yerbes, had executed a sealed contract as agent, without disclosing his principal, Emily Irene Yerkes, in the instrument, and without showing authority to bind her a feme covert by deed, she was not bound; therefore, as the contract was not mutually obligatory, it could not
But, leaving out of view this question, we think there was no want of mutuality in this contract, either because of defective execution, or because Emily Irene Yerkes was covert, which would prevent plaintiff’s suit on it. The contract was a written option to William H. Yerkes, agent, to purchase the land at the price of f5,400, to be paid on or before the 1st day1 of January, 1891. An option is an unaccepted offer to sell. By the express terms of this contract, there was to be no right of action against either the agent or principal. Nor was it for that reason a hard or unconscionable bargain which it was against equity to enforce, for it was just such an option, or offer to sell, as a prudent landowner may and often does make for his own advantage. In such a contract, if the optional price be an adequate one, and the party to whom the offer is made be without ready money, yet have the tact and energy to secure a purchaser at a higher figure, both are the gainers. If the offer be not accepted by the party to whom it is made within the time stipulated, the owner has lost nothing. But even if not mutual, in the sense of equality of benefit, that is not the mutuality which stands in the way of an enforcement; to bring it under this rule there must be want of mutuality in the remedy. Here, the contract was signed by the grantor, the party to be charged; admit there was no sufficient authority in the agent, the signature of the other party was wholly unnecessary and in no way helped to perfect the contract; it was signed by the party to be charged and delivered to the other. The plaintiff would have been in no better position if full authority had
This whole subject, of the nature of the mutuality between the parties in options for the sale of land, is so fully discussed in Corson v. Mulvany, 49 Pa. 88, followed in Smith’s Appeal, 69 Pa. 474, and now followed in this decision, that further repetition would serve no good purpose.
We decide that plaintiff’s 1st and 2d assignments of error are sustained.
As to the form of the action objected to by defendant, it is immaterial in the present condition of the record. If the evidence had been admitted, and it had been shown that the offer was in fact to Mrs. Yerkes through her agent, and had been accepted by her, the legal plaintiff should have been Emily Irene Yerkes, and her right to amend so as to have the record accord with the proof could not have been denied. If William H. Yerkes acted without her authority, either precedent, or subsequent by ratification, then he had a right of action in his own name. This can only be determined when the court has before it plaintiff’s full case on all the material evidence to be offered.
The judgment of the court below refusing to take off non-suit is reversed, and procedendo is awarded.