Jolliffe v. Steele

[213]

SHAW, J,

Action to quiet title. Defendants appeal from judgment in favor of plaintiff, and from an order denying their motion for a new trial.

On August 18, 1904, plaintiff entered into a written agreement with defendant Steele, whereby she granted to him “the exclusive option to purchase or sell for her,” at his discretion, the property described in the complaint, at the prices specified in the contract. The stated consideration moving to plaintiff from defendant was the covenants made on the part of Steele, as set forth in said contract. The only covenant contained in the contract on the part of Steele is as follows: “The said second party (Steele) hereby accepts the option to purchase or the right to sell the aforesaid property under the terms of this agreement, and agrees to do all in his power to dispose of the aforesaid property as per the terms of the agreement.” By the agreement Steele was authorized to contract for certain street work and surveys of the property, the expense of which, however, was to be borne by plaintiff. For the purpose of subdividing the property, he did, as empowered, cause a survey thereof to be made for the purpose of such subdivision and sale. Plaintiff’s title to the property at the time of making the contract was imperfect, which fact was known to Steele at that time. Sometime in March, 1905, plaintiff’s title was perfected and Steele then proposed to proceed in an endeavor to perform the conditions of the contract on his part; whereupon plaintiff revoked the contract and notified him that she would not recognize his right to proceed under the contract and would not be bound thereby. At the time of the revocation Steele had not sold the property, nor had he done anything toward performance of the contract, except causing the said survey of the premises to be made. On May 25, 1905, Steele caused said contract to be recorded, thus constituting a cloud upon plaintiff’s title; and on the 29th of May following, and after the revocation thereof by plaintiff, Steele assigned all his interest in the contract to his codefendants, Cherry and Crenshaw, who prior to the commencement of this action offered to perform all the acts required by them to be done under the terms of the contract. By the terms of the agreement it was to remain in force until the entire property was sold, during which time plaintiff was to pay all taxes and liens, and not encumber the property except with the written assent of Steele.