Swank v. Fretts
Swank v. Fretts
Opinion of the Court
The language of the agreement is that the party of the first part (plaintiff) “ agrees to sell,” but there is no agreement of the other party to buy, and any obligation to do so is negatived by the last sentence, “ If the second party accepts the coal . ... he also agrees to take the McKee farm,” etc. The vendor was to make a deed “ on fifty days’ notice in writing by the party of the second part,” but there was no obligation to give such notice. The agreement ivas clearly an option and time was of its essence: McMillan v. Phila. Co., 159 Pa. 142; Neill v. Hitchman, 201 Pa. 207.
The duration of the option is somewhat uncertain, but as it was provided that a failure to make the first payment within fifty days from the date should render the agreement void, that was the apparent limit of the time for acceptance. It is admitted that no payment was ever made and no notice of acceptance given up to the filing of this bill, nearly two years and a half after the date of the agreement.
Decree affirmed at costs of the appellant.
Reference
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- Contracts—Option—Agreement to sell coal—Time. An agreement to sell land with no obligation on the other party to buy, and vendor to make a deed on specified notice from the other party, but no obligation to give such notice, is an option and time is of its essence. On a bill in equity for the cancellation of an agreement, it appeared that the plaintiff, an owner of coal, agreed in writing to sell the coal at a certain rate per acre. The agreement contained the following provisions: “The deed to be made for the above-described tract of coal and mining rights by the party of the first part, their heirs or assigns, on fifty days’ notice in writing by the party of the second part, his heirs or assigns. ... A failure of the second party to make first payment within fifty days from the above date shall render this agreement null and void.” There was no agreement on the part of the defendant to buy. No payment was ever made and no notice of acceptance given, up to the filing of the bill, two years and a half after the date of the agreement. Held, that the plaintiff was entitled to a decree.