Kellow v. Jory
Kellow v. Jory
Opinion of the Court
We do not think the agreement between Henry Jory et al. and Joseph Kellow, plaintiff and appellant, was a mere authority to sell the land in question. It was something more than an authority to sell. It was an option, by means of which the owners of the land were bound to convey the property to the plaintiff or his appointee at the price agreed upon, whenever called upon to do so; in the meantime, the appellees were to remain in possession. The plaintiff did not exercise his option for about four years, and not until the appellees had an offer for the property at a largely increased price. He then called upon one of the appellees, and demanded a conveyance to one Creary, as his appointee. But neither the plaintiff nor his appointee made a tender of the money, and for anything that appears, neither of them had the money to pay for the property. When a man has an option upon property, and has laid by for several years without exercising it and it has greatly enhanced in value, if he claim a conveyance of it he should at least show a tender of the purchase money, or that his appointee has the means to pay for it.
Judgment affirmed.
Reference
- Full Case Name
- JOS. KELLOW v. DINAH JORY
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- (a) In consideration of the plaintiff’s undertaking to use his best efforts to sell their land for a certain price, the defendants bound themselves to convey to the plaintiff, his heirs or assigns, or to his appointee, “ whenever called upon so to do; ” the defendants to remain in possession in the meantime. (b) Four years afterwards, the plaintiff demanded a conveyance to his appointee, but without tendering the purchase money. In the meantime, the defendants had an offer for the property embraced in the agreement, at a largely increased price; and refused to convey to the plaintiff’s appointee: 1. Though the agreement was something more than an authority to the plaintiff to sell the land, being an option for the purchase of it, yet he was not entitled to recover damages for the defendant’s refusal to convey, without proof of tender or of his appointee’s ability and readiness to perform. 2. When one has an option for the purchase of property and has delayed the exercise of it for several years, and in the meantime it has greatly increased in value, if he claim a conveyance he should at least show a tender of the purchase money, or that his appointee has the means to pay it.