Smith v. Mills

DRAPER, P. J. This appeal is from an order in probate confirming sale of real property, but the sole question is whether there is a contract between appellant, as vendee, and respondent executrices, as vendors.

The parties executed a written agreement by which the executrices for a cash consideration, granted appellant an option to purchase the land upon specified terms. Sale was specifically made subject to confirmation by the probate court. One of the 17 paragraphs of the agreement provided: “Any notice that either party hereto desires or shall be required to give to the other hereunder shall be given in writing, either delivered personally or sent by prepaid registered mail . . . Notice by registered mail shall be deemed to have been consummated upon the expiration of twenty-four (24) hours from the time of deposit thereof in any United States depositary for mail. ’ ’

The option was to expire at midnight, October 27, 1962. On October 26, appellant telephoned the attorney for the estate to advise that it was being exercised. The same day, he wrote to the estate attorney, whose address was specified in the option agreement for notices to the executrices: “May this letter serve as notice to the Co-Executors of the Estate of Lucille Crossman, No. 156057, that I am exercising my option [372]ito purchase under said terms of the option dated May 29, 1962 and expiring on October 27, 1962. You will please notify me in writing of the steps needed to be taken for confirmation.” Postage was prepaid, but the letter was sent by ordinary mail. The envelope is postmarked at 6:30 p.m. October 26, and presumptively was delivered to the attorney’s office the next day, Saturday. It was not actually received by counsel until Monday, October 29. He promptly wrote appellant, acknowledging exercise of the option. At appellant’s requests, petition for confirmation of sale was continued some 46 days. Appellant wrote December 13, saying that he was not able to perform the agreement then, but was “continuing to perform on the purchase as soon as possible.” This petition for confirmation followed.

Appellant argues that there is no contract because the letter sent by ordinary mail was either wholly ineffective to exercise the option, or was too late because effective only upon its actual receipt after the option had expired.

Respondents assert that the use of registered mail, even if held to be required by the option agreement, was for their benefit and thus could be waived by them (Artukovich v. Pacific States etc. Pipe Co., 78 Cal.App.2d 1, 3 [176 P.2d 962]). It has been pointed out that this rule, broadly applied, would grant the offeror an unwarranted option to affirm or reject the acceptance and the contract without communication to the offeree and without limitation of time (1 Williston, Contracts (3rd ed.) § 92; 1 Witkin, Summary of Cal. Law (1960) p. 69). This criticism may not apply under the facts of our case, but we do not resolve this question, since in our view the option agreement does not require acceptance by registered mail.