Wightman v. Hall

CRAIG, J.

This is an action for specific performance of a written contract giving plaintiff an option to purchase property held by the defendants as equal co-owners in common. The contract was dated September 5, 1919, and expired January 15, 1920. On the last-mentioned date Della M. Hall signed her name, followed by the word “agent," executing a writing purporting to extend the plaintiff’s option to February 15, 1920. On February 14th plaintiff tendered to Della M. Hall the agreed purchase price. She rejected this offer. The contract was executed by each of the defendants, but Della M. Hall was the only one to sign the extension agreement. Time was not expressly made of the essence of either writing. The trial court denied the relief sought and entered judgment for the defendant.

We think it clear that at the time of plaintiff’s tender the original option had expired for all purposes unless it was kept alive by the writing signed by “Della M. Hall, agent.” A number of authorities are cited by appellant to the proposition that where time is not expressly made of the essence of the contract the mere fixing of a time or date does not make it an essential factor. These cases principally deal with contracts other than option. In

Cates

v.

McNeil,

169 Cal. 697 [147 Pac. 944], the contract, was in creating an option. It was so construed that the offer to perform was within the time stipulated.

Vassault

v.

Edwards,

43 Cal. 458, was a case where an agreement gave plaintiff twenty days in which to exercise his option, to accept or reject. Later plaintiff’s time was extended indefinitely, so that defendant might perfect his title. It

[634]

was the court’s opinion that time was of the essence of the original proposal for sale, although not expressly so stated. It is said in the opinion: “Had no time been mentioned the plaintiff would have been entitled to reasonable time in which to exercise his election, but the time having been fixed, the court has no power to extend it.” This principle is applicable to the instant ease. It is in accord with authority in other jurisdictions.