Saraceno v. Carrano

Shumway, J. The agreement made by the plaintiff is one which cannot correctly be defined as a bond conditioned to convey real estate, nor as an agreement to convey; and possibly, strictly speaking, not even as an agreement to sell the property named at the option of the defendant. The agreement, appearing in the record as Exhibit C, in form is like a bond without penalty, but, however, containing an agreement to convey the property whenever the plaintiff should “elect” to do so. It appears that whatever the parties had in mind, it was put into apt and clear language in the final sentence of the document, as follows: “Meaning and intending hereby to give to the said A. R. Carrano the option upon the purchase of said property, if said parties of the first part at any time should desire to sell said property.” The only meaning of this language is that the defendant could purchase the property if he so desired for $11,200, if at the same time the plaintiff desired to sell the property at that price. Thus was created a double option, a promise on the part of the plaintiff to sell the property at her option to the defendant at his option. It is manifest that an agreement of this kind is one which neither party can *566 enforce, either by an action for specific performance or by compensation in damages for its breach, unless the plaintiff elected to sell and the defendant elected to buy at the same time. No court would attempt to order the plaintiff to elect to sell or to give the defendant damages for her failure to so elect. In a Kentucky case, Magoffin v. Holt, 1 Duv. (62 Ky.) 95, it was held that an agreement to purchase land at the election of the owner was the counterpart of an agreement by the owner to sell at the election of the buyer, and that the rules governing the two agreements were substantially the same; There is no good reason why this should not be the rule. In this case there is no agreement by ■the defendant to purchase even if the plaintiff elects to sell. How much more potent the reason that the plaintiff should have the right to avail herself of any privilege that the law gives in making her election, either to sell or not to sell. In the case of an absolute agreement to sell at the option of the purchaser, if no time is mentioned within which the choice is to be made, it is the law that the option must be exercised within a reasonable time. That the parties themselves did not contemplate that the agreement was one which bound the plaintiff to sell her property to the defendant for $11,200, if at any time during her life she desired to sell, irrespective of its value at the time she might entertain the desire to sell, is apparent from the agreement, Exhibit D, in the record. The plaintiff had paid the defendant $500 to be released from her agreement of December 26th, 1907. This sum was received by him in full payment and satisfaction of the damages he had sustained by reason of the nonperformance of the plaintiff’s contract. The defendant thereupon agreed, in case the plaintiff elected to sell the property to him within one month, to return $200 of the amount received, and in case she elected to convey the *567 property to him within two months, to return $100. It is not unreasonable to infer that the parties at that time understood that if the plaintiff did not elect to sell the property within two months, it might be considered as the exercise of her right to elect not to sell the property for 111,200 to any one. In all contracts to convey property, at the option of the buyer or the seller, time is the essence of the agreement, and it would be unreasonable to hold that the plaintiff could not, during her lifetime, exercise her right not to sell, and at the same time, if she had agreed to sell the property at the defendant’s option, that such option must be exercised by the defendant within a reasonable time. The plaintiff had a right to elect not to sell her property for $11,200. The defendant acquired no right beyond the privilege of purchasing if the plaintiff elected to sell, for the price named, and after the lapse of nine years it is to be presumed that she made the choice and elected not to sell. The agreement, therefore, has no longer any effect or validity. There is error, the judgment is set aside and the Superior Court is directed to render judgment cancelling the agreement Exhibit C and discharging the plaintiff’s property of all incumbrance or liens by reason thereof. In this opinion the other judges concurred.