Lennon v. . Habit

Seawell, J. Passing tbe fact tbat tbe interpretations placed by defendants on a number of tbe substantial allegations in tbe complaint lead to statements and assumptions in tbe demurrer contradictory to these allegations, fairly interpreted, we do not agree with tbe interpretation which tbe court below evidently placed upon tbe contract, nor with tbe legal inferences which it drew in sustaining tbe demurrer. It is not necessary to set out in great detail tbe considerations which have led us to this conclusion, but we do not regard tbe contract as *146 requiring the full payment of tbe purchase price within the ninety-day period during which the option had to run, but only as requiring this to be done when the defendants were in position to transfer, and did within reasonable time transfer, the unencumbered property to the plaintiffs. Certainly, in so far as notice that the plaintiffs intended to exercise the option of purchase, time was of the essence of the contract, and this had to be done within the ninety-day period; but payment within that period was not of the essence of the contract. The notice within the ninety days was sufficient to make it a binding contract of purchase and sale at the price and upon the conditions named, none of which conditions necessarily, and as a matter of law, operated to defeat the contract by reason of nonperformance within the option period. Davis v. Martin, 146 N. C., 281, 59 S. E., 700; Timber Co. v. Wilson, 151 N. C., 154, 65 S. E., 932; Wachovia Bank & Trust Co. v. United States, 98 Fed. (2d), 609. This view of the contract disposes of much of the objections of the defendants which prevailed in the lower court. The contract calls for a delivery free from encumbrance. It was the duty of the defendants, upon notice of the plaintiffs that they intended to exercise the option, to take all necessary steps to deliver to the plaintiffs the unencumbered title to the property. The complaint alleges that defendants have notified the plaintiffs that they will take no steps to secure from the several Commissions the approval necessary to the delivery of the property, apparently basing their refusal on the mistaken notion that the expiration of the ninety-day period of the option foreclosed any rights the plaintiffs had to the enforcement of the contract or for damages for its breach. The complaint also alleges that they have declared their intention not to carry out the contract for the delivery of the property at all. Even if the plaintiffs had been required by the contract to pay all the purchase price within the ninety days- — which is not conceded- — -sufficient matter appears in the allegations of the complaint to justify a submission to the jury of the readiness and.ability of the defendants to comply with their duty to see that plaintiffs receive an unencumbered title. Tender is not required where on defendant’s statements it would be futile. Bateman v. Hopkins, 157 N. C., 470, 73 S. E., 133; Samonds v. Cloninger, 189 N. C., 610, 127 S. E., 706; Wachovia Bank & Trust Co. v. United States, supra. Apparently at one time the defendants themselves took the view that the contract might be complied with, although the purchase price had not all been paid within the ninety-day period, since they joined with the plaintiffs in a petition to the Interstate Commerce Commission to *147 approve tbe sale and tbe transfer about six days before tbe expiration of tbe period. It seems clear to us tbat sucb approval need not bave been made necessary under tbe terms of tbe contract during the ninety-day period. At any rate, tbe defendants may not speculate upon tbe probability of an adverse ruling by tbe various ■ Commissions concerned, based upon tbeir present attitude of unwillingness, or for any other reason, since under tbe circumstances of this case it was tbeir duty at least to join in any application made to tbe Commissions in furtherance of tbe purpose of tbeir contract, which tbe complaint alleges they bave failed to do. Tbe fact tbat tbe trade between plaintiffs and defendants could not be consummated without tbe approval of tbe Interstate Commerce Commission does not affect tbe jurisdiction of this Court of tbe subject matter of this action, as set out in tbe complaint. ¥e bave refrained from discussing any matter not necessary to a consideration of tbe demurrer. Tbe complaint alleges a cause of action, and tbe judgment sustaining tbe demurrer is ■ Beversed.