Swank v. Fretts ( 1904 )

Per. Curiam,

The language of the agreement is that the party of the first part (plaintiff) “ agrees to sell,” but there is no agreement of the other party to buy, and any obligation to do so is negatived by the last sentence, “ If the second party accepts the coal . ... he also agrees to take the McKee farm,” etc. The vendor was to make a deed “ on fifty days’ notice in writing by the party of the second part,” but there was no obligation to give such notice. The agreement ivas clearly an option and time was of its essence: McMillan v. Phila. Co., 159 Pa. 142; Neill v. Hitchman, 201 Pa. 207.

The duration of the option is somewhat uncertain, but as it was provided that a failure to make the first payment within fifty days from the date should render the agreement void, that was the apparent limit of the time for acceptance. It is admitted that no payment was ever made and no notice of acceptance given up to the filing of this bill, nearly two years and a half after the date of the agreement.

Decree affirmed at costs of the appellant.