Summary
noting that acceptance of an option converts the option to an enforceable bilateral contract to sell
Summary of this case from Prestenbach v. CollinsOpinion
No. 37863.
March 12, 1951.
1. Appeal — option to purchase — consideration.
In a suit to enforce rights alleged to have arisen under an option to purchase real estate when there were several defenses none of which was good except that the option was without consideration, it will be assumed that the trial court in dismissing the bill found as a fact upon the conflicting evidence that no consideration had been given or paid for the option, although no specific finding of fact on the point was made by the court, the rule being that if there be any ground which will sustain the decree it will be upheld.
2. Vendor and purchaser — option without consideration, withdrawal — acceptance.
An option without consideration to purchase real estate is no more than a mere offer to sell and may be withdrawn at any time prior to acceptance or tender of the purchase price, and an acceptance or tender after such withdrawal is without effect.
Headnotes as approved by Alexander, J.
APPEAL from the chancery court of Amite County; R.W. CUTRER, Chancellor.
Gordon Gordon and F.W. Stratton, for appellant.
Cited the following: Laws of 1946, Chap. 221, Sec. 7, Chap. 221, Sec. 9; 58 C.J. pp. 911, 913, Paragraphs 67, 71; 17 C.J.S. 1121, paragraph 519; Yazoo M.V.R. Co. v. Sideboard, 161 Miss. 4, 133 So. 669; Canada v. Y. M.R.R. Co., 101 Miss. 274, 57 So. 913; Moore v. Kirkland, 112 Miss. 55, 72 So. 855; Hartford Accident Indemnity Co. v. Hewes, 199 So. 93; 62 C.J. 657, paragraph 5; Sovereign Camp W.O.W. v. McClure, 176 Miss. 536, 168 So. 611; Bonds v. Rhoads, 203 Miss. 440, 35 So.2d 437; Scott v. Perry, 140 Miss. 452, 106 So. 12.
B.D. Statham, for appellees.
I. The Veterans' Farm and Home Board was a real party in interest and it was necessary that they be a party to the suit. Ch. 221, Laws 1946; Ch. 500, Laws 1948; 49 Am.Jur. 175.
II. The option was not enforceable since it was to be concluded pursuant to the provisions of an act of the Legislature that had been amended and a complete new act passed. Chap. 500, Laws 1948.
III. The appellant was not an eligible veteran as qualified in either the 1946 or 1948 Veterans' Farm and Home Board Purchase Act. Chap. 221, Laws 1946; Chap. 500, Laws 1948; Griffith, Miss. Chancery Practice, p. 35.
IV. The option was not supported by consideration and was subject to be revoked or cancelled. Thompson, Real Property, Sec. 2; 55 Am.Jur. Ven. Pur., Sec. 32; Stigler, et ux. v. Jaap, et al., 83 Miss. 567, 35 So. 948; Comstock Brothers v. North, 88 Miss. 754, 41 So. 374; Bancroft v. Martin, et al., 144 Miss. 384, 109 So. 859; 55 Am.Jur. 508.
V. There was no tender made by the Veterans' Farm and Home Board. 55 Am.Jur. 511; Phelps v. Dana, 121 Miss. 697, 83 So. 745.
VI. The option provided for acceptance within sixty days and the same was not accepted. Griffith, Miss. Chancery Practice, Sec. 674; Aetna Insurance Company, et al. v. Robertson, 94 So. 7; Veterans' Welfare Board, et al. v. Jordan, 208 P. 284.
Appellant filed bill to reform an alleged contract to convey land and specifically to enforce such contract as reformed.
January 12, 1949, Mrs. Nix executed an option in favor of the Veterans' Farm Home Board of this State, pursuant to which, by understanding of all parties concerned, the Bureau was to purchase the lands described for the benefit of appellant, a qualified war veteran. The applicable procedure is set forth in Chapter 500, Laws of 1948. The option period ran for either sixty or ninety days, the former figure being supported by the testimony for appellees and the latter figure by that for the appellant.
There were several defenses raised in the answer and reflected in the testimony. These include a failure to make the Board a party; disqualification of appellant to receive benefit of the Act; expiration of the option period; failure of timely tender; and a failure of consideration.
The decree of the trial court dismissed the bill and from such action this appeal is taken.
(Hn 1) We consider only the defense last mentioned. There was a direct conflict whether the stated consideration of one dollar was paid. Appellant stated that it was paid to Mrs. Nix who denies payment. There was no finding of fact by the chancellor and it must be assumed that there is implicit in the decree an adjudication of no consideration. We are guided to this conclusion by a finding of insufficient merit on the other contentions, and if there be any ground which will sustain the decree it will be upheld. Carr v. Miller, 162 Miss. 760, 139 So. 851; Lee v. Memphis Pub. Co., 195 Miss. 264, 278, 14 So.2d 351, 152 A.L.R. 1428; Winfield v. Winfield, 203 Miss. 391, 35 So.2d 443.
There is pressed upon us the view that there was no tender made during the life of the option. Even if we should determine that a tender was made which could have constituted an acceptance of the offer inherent in the option, such tender would have to be made while the option remained in force.
As stated, (Hn 2) the option was dated January 12, 1949. On February 15 thereafter Mrs. Nix wrote to appellant withdrawing the option. We need not discuss the right of an optionee or a third party beneficiary to compel retention of rights when a valuable consideration has been paid. Since we must find that the factual issue of payment of the stated consideration has been resolved against appellant, Mrs. Nix had the right to withdraw the unilateral offer at any time prior to acceptance or tender of the purchase price. There was no sufficient tender or acceptance made, if at all, until after revocation. 55 Am. Jur., Vendor Purchaser, Section 32, p. 503.
Affirmed.