Cortelyou v. Barnsdall

Mr. Justice Scott delivered the opinion of the court: After appellees notified Seybert that they had elected to revoke the option given by the lease, the appellants, as averred by their answers and shown by the proof, within twelve months from the date of the lease made tender of the twenty-five cents per acre therein specified, for extending the time for the completion of the contract. This was unavailing, if, as contended by appellees, the contract was without mutuality. Of the questions which are open for our consideration the initial one is, was Seybert in fact bound to do anything whatever under the option agreement? If not, as he had not paid anything for the option, had not acted on the agreement, and had not, after it was signed, bound himself to accept the option, appellees were at liberty to avoid the undertaking. It will be observed that the instrument does not expressly fix a single obligation with which Seybert was bound to comply and does not expressly recite any consideration upon which it was entered into. Appellants contend, however, that an implied covenant arises binding Seybert to drill, develop and operate the premises demised. Whether such an implied covenant may be gleaned from an instrument in substance as that now before us is a question upon which the authorities in other jurisdictions are not uniform. We deem a discussion of those cases unnecessary, as the decisions of this court warrant the conclusion that this contract is without mutuality, and that the option could be withdrawn at any time before Seybert had, by some act done after the agreement had been signed, accepted or bound himself to exercise the option. In Bauer v. Lumaghi Coal Co. 209 Ill. 316, a contract pertaining to the conveyance of a right of way for a rail-j road track to a proposed coal mine was involved. The agreement apparently required Bauer to convey the right of way for the sum of $300, if the same should be deemed necessary by Rupprecht, his heirs or assigns. The purpose of Rupprecht evidently was to place himself in a position' where he could acquire the right of way in case the mine which he and others proposed to open should prove rich enough to warrant the construction of a coal road. We held, however, that Rupprecht was not bound by the contract to do anything unless he elected to take the initiative, and the agreement lacking mutuality could not be enforced. In Bruner v. Hicks, 230 Ill. 536, a contract similar to, and executed under like circumstances as, the one now before us was considered. We there expressed the view that the lease was obtained purely as a matter of speculation and not with a view to prospect the lands, as the lessors had been led by the lessee to believe would be done when the instrument was executed. Appellees’ revocation was merely the withdrawal of an offer which Seybert had not seen fit to accept or the retraction of an option which he (Seybert) had not elected to exercise. McCauley v. Coe, 150 Ill. 311. The judgment of the Appellate Court will be affirmed. Judgment affirmed.