In re LEVINSON ( 1923 )

NETERER, District Judge

(after stating the facts as above). I think the referee was right in concluding that the option was still in force, and that the balance due on the option, $100,000, with interest at 6 per cent, from February 27, 1919, should be paid, with the exception that interest should not be charged from February 27, 1923, the date the option matured, to May 24, 1923, the date when the decree was entered in the superior court of the state. From the record it appears that Mrs. Rosenberg announced her readiness and willingness and ability to close the option immediately prior to its expiration. The trustee was not able to make the transfer, because the matter was pending in the state court, and thereafter application was made to the Supreme Court for a writ of certiorari and the matter was not concluded until the 24th of May. During this time Mrs. Rosenberg offered to deposit the money into the court where the action was pending, the money to be held in lieu of the property, and await the final decision of the court. This offer the trustee declined. A tender to the trustee of the money would not have served any purpose prior to May 24, 1923. It would have been entirely futile, for the reason that the title was not finally determined.

I think the order of the referee should be modified, and no interest be charged from February 27, 1923, to May 24, 1923. In all other respects, the order of the referee is affirmed.

Note. — The following authorities were cited by petitioner, to the effect thát a tender is not required where it appears to be futile, and where there are dependent mutual and concurrent acts, one party must offer to perform before he can forfeit the other, etc. Conner v. Clapp, 42 Wash. 644, 85 Pac. 342; Richardson v. Harkness, 59 Wash. 476, 110 Pac. 9; Gould v. Knox, 53 Wash. 248, 101 Pac. 86; Weinberg v. Naher, 51 Wash. 591, 99 Pac. 736, 22 L. R. A. (N. S.) 956; Livieratos v. Commonwealth Co., 57 Wash. 376, 106 Pac. 1125; Rodda v. Needham, 79 Wash. 636, 139 Pac. 628; Keane v. Zindorf, 61 Wash. 152, 142 Pac. 484; McLeod v. Morrison & Eshelman, 66 Wash. 690, 120 Pac. 528, 38 L. R. A. (N. S.) 83; Lewis v. Wellard, 62 Wash. 590, 114 Pac. 455; 29 Am. & Eng. Encyc. of Law, 683; Lawrence v. Halverson, 41 Wash. 534, 83 Pac. 889; Clutter v. Strange, 41 Wash. 90, 82 Pac. 1028.

The following authorities were cited by trustee in support of his contention that time is to be regarded as the essence of the option, and that the terms of the option must be complied with, etc. Waterman v. Banks, 144 U. S. 394, 402, 12 Sup. Ct. 646, 36 L. Ed. 479; Gaines v. Chew (C. C.) 167 Fed. 636; Woods v. McGraw, 127 Fed. 914, 63 C. C. A. 556; Olsen v. Northern S. S. Co., 70 Wash. 495, 127 Pac. 112; Spokane, etc., Ry. Co. v. Ballinger, 50 Wash. 550, 97 Pac. 739; Neeson v. Smith, 47 Wash. 393, 92 Pac. 131; 27 R. C. L. 543, § 40; American Strawboard Co. v. Haldeman Paper Co., 83 Fed. 619, 27 C. C. A. 634; Couch v. McCoy (D. C.) 138 Fed. 696; James v. Darby, 100 Fed. 224, 40 C. C. A. 341; 39 Cyc. 1237, 1238; Sharp v. West (D. C.) 150 Fed. 435; Richardson v. Hardwick, 106 U. S. 252, 255, 1 Sup. Ct. 213, 27 L. Ed. 145; Kelsey v. Crowther, 162 U. S. 404, 406, 16 Sup. Ct. 808, 40 L. Ed. 1017; 39 Cyc. 1239; 27 R. C. L. 344, § 41; 39 Cyc. 1663; 27 R. C. L. 538, § 272 ; 39 Cyc. 1561, 1562; Sleeper v. Bragdon, 45 Wash. 562, 567, 88 Pac. 1036; 39 Cyc. 1564, 1567, 1569.