Summary
noting that time for performance isn’t an essential term
Summary of this case from Tower Loan of Miss., L.L.C. v. Willis (In re Willis)Opinion
No. 35837.
April 23, 1945.
1. EXECUTORS AND ADMINISTRATORS.
Where lease by administratrix in its entirety was upon adequate consideration, each stipulation therein, including provision that lessee could be required to move in 90 days if administratrix received binding offer to purchase and lessee failed to exercise right of first refusal, was upon consideration.
2. EXECUTORS AND ADMINISTRATORS.
A provision in lease by administratrix, that lessee could be required to move in 90 days if administratrix received binding offer to purchase and lessee failed to exercise right of first refusal, was not void for uncertainty because of failure to specify time within which lessee should accept or reject the right to purchase.
3. CONTRACTS.
When contract clause fixes no definite time for performance, the law ordinarily implies that performance shall be within a reasonable time.
APPEAL from the circuit court of Harrison county, HON. L.C. CORBAN, Judge.
Albert Sidney Johnston, Jr., of Biloxi, for appellants.
The lease to defendant Smith and his sale and assignment to his co-defendant Long are valid and binding on appellee.
Parks v. Kline et al., 118 Miss. 119, 79 So. 81; Ashley v. Young, 79 Miss. 129, 29 So. 822; Grisham v. Lutric, 76 Miss. 444, 24 So. 169; Wirtz v. Gordon, 187 Miss. 866, 184 So. 798.
No consideration was shown to have been paid for the option to buy the property, which appellee claims was given appellant Smith. Smith had, at most, a continuing offer — an offer that could have been withdrawn at any time. It was withdrawn by sale of the property to appellee on March 15, 1944. Paragraph 10 of the lease contract is uncertain and indefinite; it does not fix any time within which to meet the offer to purchase the property; it does not fix the beginning of the period in which appellant Smith could meet the offer, if one was received, and it does not fix the beginning of the 90 day period in which he would be required to move.
An option is a continuing offer or contract by which the owner stipulates with another that the latter shall have the right to buy the property at a fixed price, within a certain time, and, unless the option is founded on a consideration, it may be withdrawn at any time before acceptance.
Kolb v. Bennett Land Co., 74 Miss. 567, 21 So. 233; Stigler et ux. v. Jaap et al., 83 Miss. 351, 35 So. 948; Comstock Bros. v. North, 88 Miss. 754, 41 So. 374; Bancroft v. Martin et al., 144 Miss. 384, 109 So. 859; Godchaux Sugars, Inc., v. Fink, 188 Miss. 531, 195 So. 318, 319; Ganss v. J.M. Guffey Petroleum Co., 110 N.Y.S. 176, 177, 125 App. Div. 760; Sargent Co. v. Heggen, 195 Iowa 361, 190 N.W. 508; Johnston v. Trippe, 33 F. 530; Watts v. Keller, 56 F. 1, 5 C.C.A. 394; Williams v. Graves, 7 Tex. Civ. App. 356, 26 S.W. 334, 338; 30 Words and Phrases 10-11; 41 Words and Phrases 654.
Inasmuch as appellee contended in the court below that the lease contract to appellant Smith was void and of no contractual effect, and since said lease is dated July, 1942, and this action was not commenced until 1944, appellee's unlawful entry and detainer suit was barred by the statute of limitations.
Code of 1942, Sec. 1033.
W.L. Guice, of Biloxi, for appellee.
The lease was wholly illegal and not binding upon any of the heirs of J.W. Swetman, for the reason that the estate of Swetman owed no debts and the lease was authorized by the chancellor without notice to the heirs and without a showing of the jurisdictional facts necessary in order to make a lease by an administrator or administratrix valid.
Miles v. Fink, 119 Miss. 147, 80 So. 532; Parks v. Kline, 118 Miss. 119, 79 So. 81; Ashley v. Young, 79 Miss. 129, 29 So. 822; Hemingway's Code of 1917, Sec. 3323; Code of 1942, Secs. 264, 578, 591, 605.
A provision in a lease that it shall terminate upon specified notice to the lessee of a bona fide sale of the premises, or of a lease for a term of years of the whole premises on which the property covered by the first lease stands, is valid.
35 C.J. 1151, Sec. 406.
A close reading of all the cases cited by the appellant will show that they involve optional rights separate and apart from any other agreement, under the terms of which a valuable consideration was received by the person making the option or promise. It would indeed be absurd to say that if the lease contained several clauses in favor of the lessor a new consideration would be required for the making of each separate promise instead of the one general consideration for the right of the use of the property for the period specified in the lease. We think that this is governed by the general law of contracts which makes valid all of the agreements of the parties if one consideration is set out for the making of the whole contract and this consideration is sufficient and valid.
When a contract clause fixes no definite time for performance the law usually implies that performance shall be within a reasonable time.
17 C.J.S. 1063 et seq., Sec. 503.
It is undisputed that the unencumbered, fee-simple title to the property here involved was, at the date of the lease, vested in the heirs of Swetman, and for the purposes of this case we will assume that the lease made by the administratrix was valid because authorized by the heirs or else subsequently ratified by them. We proceed at once therefore to Paragraph 10 in the lease which is as follows:
"It is specifically agreed and understood by and between the parties hereto that should the party of the first part being the Swetman Estate or the administratrix herein receive a valid offer of sale for the said building the party of the second part shall be notified and given the right to meet the said offer for the purchase thereof, at same price, terms and conditions. If he fails to accept said offer he shall be given credit for the improvements he has placed on the said building and paid according to the receipted invoices he has filed with G.B. Cousins, Jr. If however he will purchase the said building he will likewise be given credit for the said improvements placed thereon and the same subtracted from the purchase price. It is further agreed that the party of the second part will be given ninety days to move if there is a valid and binding offer of sale received and he fails to exercise his right of first refusal for the purchase thereof."
After the tenant had gone into possession under the lease, the Swetman estate received an offer of purchase, and on February 21, 1944, the estate, through its attorney, in writing, notified the tenant thereof, the notice giving the name of the offerer, the price and the terms, and tendering the tenant the right to meet the offer. The notice made reference to the quoted paragraph of the lease contract and was in such terms as to fully comply with and cover the paragraph. The tenant admits that he received the notice and that he took no steps about it whatsoever, but in effect disregarded it. After waiting for approximately three weeks and hearing nothing from the tenant, the Swetman heirs on March 15, 1944, made their warranty deed for the property to the offerer, the appellee herein. The tenant was thereupon advised of the purchase by appellee, who made it known to the tenant that he could remain at the same rent, not under the former lease contract, but from month to month. The tenant declined to accept this arrangement, and on June 6, 1944, appellee notified the tenants in writing that possession would be demanded on July 1, 1944, at which time more than 90 days from the date of the purchase would have elapsed. The tenants declined to vacate, and on July 7, 1944, appellee brought his action in unlawful entry and detainer in the county court, where he recovered judgment which was affirmed by the circuit court.
Appellants contend that Paragraph 10 of the contract is unenforceable because not supported by a valid consideration. The lease contract in its entirety is upon an adequate consideration, whence it follows that each of its several stipulations is likewise upon consideration. Appellants further contend that the paragraph is void for uncertainty, and appellants point to the fact that there is no specification of time within which the tenant is required or allowed to accept or reject the right to purchase when notified that a valid offer to purchase has been made. The argument is not well taken for the principle is applicable that when a contract clause fixes no definite time for performance, the law ordinarily implies that performance shall be within a reasonable time, and the court instructed the jury to that effect. See the text and the numerous cases cited, 17 C.J.S., Contracts, Sec. 503, p. 1063 et seq.
These are the only points which merit mention, or which have been argued, and the judgment must be affirmed.
Affirmed.