Abbott v. '76 Land & Water Co.

to purchase the land described in the contract, for a price and upon terms therein stated, at any time before the expiration of the lease. The price fixed in these contracts included a water right of forty inches of water for each forty acres. The defendant also advertised that it would,let its lands upon these terms, and also had adopted a resolution to that effect. Joseph Marriott had occupied the land here in question for several years prior to October 1, 1886, under leases or contracts containing the option to purchase above stated; but the lease for the year commencing October 1, 1886, did not contain such option. In May, 1887, the land commenced to increase in value, and by October 1st its value had about doubled. In July, 1887, the defendant announced that it withdrew all its lands from sale under these options. It is further alleged that about September 25, 1897, Marriott elected to purchase the land in question, claiming that under the usages and resolutions of defendant he had the right to purchase, but did not notify or inform the defendant of his election, nor tender or offer to pay the purchase money, but would have done so if he had not believed the statements of defendant withdrawing its land from sale; that he was not aware that his right to purchase could be enforced notwithstanding the withdrawal until a few weeks before this suit was commenced; that he was always able, ready and willing to pay, and now offers to pay, the sum at which said land was scheduled, viz., $17,800; that in July, 1890, defendant sold the water right incident to said land for $64,000, and has had said money on interest at six per cent per annum; that because of said representations he surrendered possession of the land, the annual rents and profits of which were $1,600. The prayer is that defendant be required to convey the land, that it be charged with the $64,000 received for the water right, and interest thereon, and with the rents and profits, from all which he offers to deduct the price of the land, and accept a judgment for “a balance of trust fund amounting to $80,220.” The present plaintiff, having succeeded in some way to Marriott’s rights, was substituted as plaintiff.

Placing the most favorable construction possible upon the complaint, and assuming that the previous usages, customs and resolutions of the defendants are to be considered as incorporated in Marriott’s lease made in October, 1886, and

assuming further that defendant could not take away his right of purchase by its withdrawal of the option and announced determination not to sell or convey, still there was no contract of sale created between the parties. The acceptance of the offer must be communicated to the party making the offer, or there is no contract. The withdrawal of the option, or the announcement that it would not sell or convey the property, could not relieve Harriott from the necessity of communicating his acceptance of the offer, though it might possibly obviate the necessity of a tender of the purchase money, or an offer to pay it, if he had taken the necessary step to create a contract by notifying the defendant, before the expiration of the’'lease, of his acceptance of the offer. The allegations of the complaint in this regard amount simply to this: that Marriott mentally concluded that, if the defendant had not refused to sell, he would buy; that for seven or eight years he acquiesced and gave no voice to his desire to purchase, when he was advised that he could have compelled the defendant to sell and convey, and still could do so with the added advantage of being relieved from any payment on account of the purchase, and of recovering $80,220 with which to start business on the ranch. The most remarkable feature of the case is that he should have been so advised. The demurrer was properly sustained without leave to amend, and the judgment of dismissal should be affirmed.

We concur: Searls, C.; Chipman, C,

For the reasons given in the foregoing opinion the judgment is affirmed.