Morris v. Goldthorp

I cannot concur in the holding of the majority opinion that the offer contained in the option was not accepted by appellant in accordance with its terms. Appellant, in his written notice of acceptance, identified the option contract, giving the date of the same and the description and purchase price of the property therein proposed to be sold, and by his notice informed appellees that he had decided to exercise said option of purchase, and was ready, able and willing to pay the purchase price, and asked that appellees advise him by return mail when and where, within the next four days, he might pay said money and receive properly executed their warranty deed conveying all said property to appellant's nominee "as provided for in aforesaid contract." The notice thus stated that appellant desired to exercise the option in question, was ready, able and willing to pay said purchase price and demanded a conveyance "as provided for in aforesaid contract." Although appellant also enclosed with said notice a warranty deed which he had prepared and requested that appellees advise him by return mail when and where within four days the money should be paid and the deed delivered, these additional requests of appellant, in order to be construed as a counteroffer invalidating his acceptance, must, when taken in connection with the notice as a whole, amount to an acceptance by appellant conditioned upon and to become effective only if appellant responded by return mail as in the notice requested, and, if within four days, they delivered to appellant the deed prepared by him and enclosed with the notice. This cannot reasonably be said to be the intention of appellant as expressed in the notice. His statement therein that he had decided to exercise said option of purchase and his request for a conveyance "as provided for in aforesaid contract" constituted an unequivocal, unconditional and positive acceptance of the option, in accordance with its terms, thereby converting it into an executory contract of sale. The accompanying requests for performance within four days and for the execution and delivery of the deed prepared by appellant were no more than requests and suggestions as to the time and manner of performance and were in no sense qualifications or conditions imposed as a part of the acceptance itself.

The majority opinion holds that the acceptance makes no reference to outstanding taxes or special assessments. It is apparent the simple terms of the notice of acceptance provide that the deed conveying said property is subject to the terms of the option agreement by stating the deed shall be "as provided for in aforesaid contract." The execution of the warranty deed referred to in the notice of acceptance and enclosed therewith did not compel the Goldthorps to warrant the title as against the outstanding past-due special assessments and the general taxes for the years 1942-43, because the requested deed, as requested by the notice of acceptance plainly referred to a deed as provided for in the option agreement. This, it seems, is so clear as to warrant no other reasonable interpretation. The acceptance was therefore in accordance with the offer made in the option and did not constitute a counteroffer on the part of the appellant to purchase the property upon any other conditions than named in the option and in the notice of acceptance.

In the case of Rohling v. Thole, 256 Ill. 425, the appellant Thole, by written agreement, granted to appellee Rohling the right and option to purchase certain lands in Clinton county for the sum of $15,000, the conveyance to be by warranty deed, free and clear from all liens and demands, "the current lease of the premises, if any, not to exceed one year from the first day of March, 1912, excepted." Rohling served upon Thole a notice in writing that he elected to purchase the land for $15,000, and would have the money ready for Thole at the Office of the Aviston Milling Company, at Aviston, Clinton county, Illinois, February 24, 1912, upon Thole making to him a warranty deed to the premises "free from all liens and demands, as provided in said contract." This court there held that the notice given in that case was a valid and unconditional acceptance of the option to purchase, notwithstanding the option agreement contained no provision under which Thole could be required to go to the office of the Aviston Milling Company to get the money, and notwithstanding the further fact that neither the notice nor the deed subsequently prepared by Rohling and tendered to Thole for execution provided that the conveyance should be subject to a lease then on the premises extending to March 1, 1913, although the option expressly provided that the conveyance was to be subject to such lease. We there held the notice was good and sufficient, as it informed the optionor that the optionee had elected to take a conveyance of the land, had the money ready to pay for it, and demanded a conveyance in accordance with the provisions of the contract. If the notice in that case was a sufficient acceptance of the option to purchase I can see no reason why the notice given by appellant in the instant case is not sufficient.

Moreover, as to the warranty deed enclosed in the notice of acceptance, under the holding in the Rohling case, the appellant was not required to prepare the deed. It was the duty of appellee to prepare and execute a deed in accordance with the agreement. This was all that was requested by the terms of the written acceptance.