Thomason v. Bescher

176 N.C. 622, 97 S.E. 654 (1918)



In equity causes, a court looks beyond the form and will usually refuse to exert its powers in aid of the collection and enforcement of a sealed instrument, except when there is a valuable consideration. Options containing a continuing offer to sell and constituting a contract, and binding on the parties pursuant to a covenant under seal, serve their purpose in keeping the offer open for the time specified and preventing a withdrawal by the vendor. On acceptance and offer to perform within the time, a bilateral contract is then constituted which, on breach, is enforceable by appropriate remedies, legal or equitable. And in case of action for specific performance, the consideration is not restricted to the seal or the nominal amount usually present in these bargains, but extends to and includes the purchase price agreed upon.


Defendant sellers entered into a written contract under seal giving plaintiff buyer the option to purchase the timber on their property. Plaintiff assignee acquired one-half interest in the contract prior to institution of suit. Before expiration of the time for acceptance, plaintiff buyer notified one of defendants that he was exercising his option and would take the timber. Defendants denied they had an obligation to sell him the timber, alleging that before any acceptance or notice thereof, defendants had notified plaintiffs in writing that they elected to terminate the contract. Plaintiffs filed an action for specific performance and a verdict was rendered in their favor. On appeal, the state supreme court affirmed.


Was plaintiff buyer entitled to specific performance where defendant sellers withdrew their offer before the expiration of the time agreed upon?




The contract was a solemn written covenant under seal. Defendant sellers were bound by their covenant under seal and were not at liberty to withdraw their offer before the expiration of the time agreed upon. Before any attempted withdrawal by defendants, plaintiff buyer had notified one of defendants of his acceptance of the contract. Plaintiff buyer was entitled to specific performance because he was at all times ready and able to comply with his obligations under the contract, tendering the entire purchase money, but defendants refused to accept his performance.

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