Comstock v. North

Mayes, J., delivered the opinion of the court. On the 31st day of October, 1902, Comstock Brothers wrote to J. E. North as follows: “Cincinnati, Ohio, Oct. 31, 1902. “Mr. J. E. North, Bond, Miss. “Dear Sir: — We will withdraw our Mississippi tract in'Harrison and Pearl River counties from the market until January 1, 1904, during which time you may send your men to look it over, and if, at the expiration of the time, or February 1, 1904, you decide to take this land, we will sell you eight-ninths and give you warranty deed on the same at the rate of $20 per acre, and in the meantime we will try to get the'consent of the parties owning the other one-ninth at the same price, but will not guarantee their consent. “Yours truly, “Comstock Bros/'’ [766] On the 10th clay of April, 1903, Comstock Bros, filed their bill in the chancery court of Harrison county, the allegations of which, briefly stated, are that they are the owners of an eight-ninths interest in a large body of land situated in Harrison county, state of Mississippi, and describing the said property by metes and bounds, setting forth their deraigmnent of title. The bill states that upon receipt of the letter by North, he had same recorded with the chancery clerk of Harrison county, claiming it to be an option on the land described in the bill, and prayed for a cancellation of the said letter as a cloud upon their title, and that the same be declared null and void. The defendant, North, answered the bill, and claimed that the above letter gave him a valid and binding option for the purchase of said land up to February 1, 1904, and claimed that, acting under said option, he had expended a large sum of money in causing the land to be looked over and examined, and is still doing so, and is willing, able, and ready to carry out his part of the contract as contained in the letter set out above. On the 1st day of February, 1904, the defendant North asked and obtained leave of the court to file a cross-bill. The substantial allegations of the cross-bill are that North, after receipt of above letter, expended a largo sum of money in making the examination and investigation of the land of Comstock Bros, lying in Harrison county, and said letter gave to defendant North a binding option on said land until February 1, 1904. The cross-bill then states: “It was agreed between this cross-complainant and said defendant that cross-complainant should, at his own expense, cause examination and investigation to be made of the land, and in consideration thereof cross-complainant should have the right or option to purchase said realty at any time up to the 1st day of February, 1904, at the rate of $20 per acre.” Acting upon this, and at his own expense, North expended a large sum of money, something in excess of $5,000. The cross-bill then concludes with the prayer for an accounting, [767] Tmclex the direction of the court, for the purpose of ascertaining the amount required to be paid by North for the land as the purchase money, and stated that when this is ascertained North is ready to pay. The cross-bill also prays that upon the payment of the amount that the court shall ascertain to be due, Comstock Bros, be required to execute to North a deed to the land described in the bill. The cross-bill does not allege that there had ever been, at any time, any acceptance of the pro- . posal made by Comstock Bros., and seems to rely for this upon the fact that North went to great expense in examining the land. The money is not paid into court, and no tender of it is made, other than the willingness expressed by North to pay same when the court shall ascertain the amount due. On the 2d day of February, 1904, Comstock Bros, asked leave to dismiss their original bill, which was granted by the court, and a decree entered on the 4th day of February, 1904, allowing Comstock Bros, “to withdraw their original bill, without prejudice to the right of defendant to proceed under his cross-bill, and. to obtain thereby such affirmative relief independent of the original bill as the cross-bill might entitle him to.” Comstock Bros., after filing answer denying all allegations of fraud made in cross-bill, demurred to the cross-bill of North, setting up ten different grounds of demurrer. We only notice the second ground, which is: “Because the written contract, or option, relied upon in said cross-bill, is void on its face, for uncertainty and want of description of any lands, and for want of consideration.” The letter written by Comstock Bros, to the defendant is nothing but a mere offer to sell to North the land in question, having no consideration to uphold it, and therefore revocable at the pleasure of Comstock Bros, before acceptance by North. The allegations of the bill do not show any acceptance on the part of North, or state facts which would constitute an acceptance on his part. All contracts for options must be supported [768] by a sufficient consideration, which is utterly wanting in this case. It is true that Comstock Bros., in writing to North, say: “You may send your men to look it over, and if, at the expiration of the time, or February 1, 1901, you decide to take this land, we will sell you eight-ninths interest and give you warranty deed,” etc. North alleges in his cross-bill that, acting upon this clause of the letter, he sent men and expended large sums of money in obtaining information in reference to the land, which he communicated to Comstock Bros, and which they are attempting to use for their own benefit. Where an option is conditioned upon the performance of certain acts, the performance of the acts may constitute a consideration to uphold the contract for option; but there is no such condition imposed by this letter, and, if it be true that North has communicated to Comstock Bros, the information gathered by him in making the investigation, it was a purely voluntary act of his, not contemplated or stipulated for by the terms of the letter, and therefore imposing no obligation on Comstock Bros, not Stipulated for or mentioned in the letter of proposal. All the expense in examining the land incurred by North was incurred on his own account, for the purpose of informing himself as to whether or not it would be desirable for him to make the purchase, and was not in any way intended to benefit Comstock Bros, so far as is shown by the letter; nor was it incurred in their behalf, nor did it create any consideration for the option. It is true that in the original bill of Comstock Bros, they refer to this letter as an option; but it lacks the essential quality to make it such, and the character of its obligation cannot be changed by a loose reference to it in any pleading as an option, thereby giving it a consideration which would uphold it when a consideration is utterly wanting. The base of the rights of both parties is found in this letter, and is utterly insufficient to uphold a decree for specific performance. Kolb v. Bennett Land Co., 74 Miss., 567 (21 South. Rep., 233) ; [769] Stitt v. Huidekoper, 84 U. S., 384 (21 L. ed., 644) ; Miller v. Douville & Gallagher, 45 La. Ann. Code, 214 (12 South. Rep., 132) ; School Directors v. Trefethren, 10 Ill. App., 127; Larmon v. Jordan, 56 Ill., 204; 21 Ency. of Law (2d ed.), 926, and authorities cited under head of “Consideration;” Page on Contracts, sec. 305. Let the decree he reversed, and the cross-hill dismissed.