Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-02-08
Supreme Court

In the supreme Court, State Of North
Dakota, October Term, 1912.
j. T.. Horgan II |. A.. Smith. Plaintiffs
and Respondents. VS.. r. A. Russell,
Defendant and Appellant.
| In an action for specific performance
of Il contract created by the written ac-
ceptance Of a written option to purchase
granted plaintiffs by an owner OF ands,
| Of which owner defendant procured title
! with full knowledge Of the outstanding
and un%accepted but not expired irrevoc-
| able option, IT IS HELD:
a. That defendants rights are subject
to those of plaintiffs arising from their
acceptance within the option period OF
the option granted them.
t2) That specific performance may be
maintained against defendant as it could
have been against his grantor, the former
owner of the land.
go The option and the acceptance are
set forth and construed, and it is held
that. the written acceptance constituted
an unconditional. and unqualified accept
ance of the option in accord with its
terms.
"a That the option stipulated the man
ner Of acceptance and the period of time
within which acceptance might be so
made: also it embodied provisions as TO
performance Il time Of performance to
be allowed the parties after acceptance
of the option to purchase. AS to this it
is held:
ca That time within which the accept
ance was to be made was of the essence
Of the contract: but that time within
which the contract was to be performed
after acceptance. not being clearly and
beyond question stipulated to be OF the
essence OF the contract. a performance
attempted by a tender Of payment by
the purchaser. three days after the expi-
ration of said time stipulated. is within
time ana valid in equity.
(h) \ definite and unconditional ac-
ceptance in accordance with the manner
and terms stipulated in the option is not
avoided or rendered uncertain or condi- !
tional by matter contained in the accept
ance concerning the method of perform !
ance or where payment should be made
or by a demand for an abstract for which
the sellers under the terms Of the option |
were not obligated to furnish, where the
unconditional acceptance is not qualified !
or made conditional upon compliance with
such requests or demands concerning
performance.
tcl Acceptance and subsequent per-
Torrance are different matters; and
where the acceptance is unconditional
cl,oocSfionS ar Sop,o ,1s nc RI ,,arfnrp1. !
ance not qualifying or rendering the ac-
cep,ance conditional upon compliance
with such demands will not invafidate
such acceptance.
Id Such an unqualified and uncOndi-
tional acceptance creates d contract of
purchase and sale in which an action for
performance will lie. Such con-
tract is enforcible in equity as a written
contract embodying the same terms n
by the seller and purchaser
would be enforced.
o. Upon acceptance in accordance
Will the terms Of an option TO purchase
real estate, where the land covered there
by has been. pending acceptance and. dur
ing the period stipulated within which
might be made, transferred
to a third party with full notice OF such
option outstanding and un~accepted, the
same may be accepted by notice OF ac-
served upon the optioner, the
owner. giving the option, and t%hereupon
the rights of the acceptor, optionee, re-
back to and attach as Of the date
If the option and render the intervening II
lights acquired with notice subject to ALI
lights of the option purchaser.
co. Such rights Of the optionee on
;titute an interest in lands enforcible in
equity though the optioner has trans
erred title to a third person, who ac-
title with notice of the option.
60 The performance here offered as
dead held 70 be a substantial compliance
With the contract, although the amount
Il an outstanding mortgage lien OF rec
,rd upon the premises was deducted
the amount rendered in full for the
purchase price; and the fact n
hat the deposit Of such amount tender
ID was made subject to the order OF the
owner and optionor. with notice
n writing thereof served upon both OPP
Toner and defenaant purchaser with no