Appeal, No. 35, March T., 1952, from decree of Court of Common Pleas of Mercer County, March T., 1950, in Equity, No. 5, in case of W. B. Taylor v. Joseph Hartman et ux. Decree reversed.
Cyril T. Garvey, with him Martin E. Cusick and Wiesen, Cusick & Madden, for appellant.
John R. Boland, Jr., with him Thomas H. Armstrong, for appellees.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This appeal is from an order of the Court of Common Pleas of Mercer County dismissing a bill for specific performance.
The controversy centers in an option executed by the defendants, Joseph Hartman and wife on November 26, 1949 which gave plaintiff W. B. Taylor (referred to in the agreement as the "party of the second part") the right to buy from the defendants 30 acres of land in Mercer County. The option contained the following terms and conditions: "... the party of the second part shall exercise the within option within sixty (60) days from date of the within option; the said purchase price to be paid by the party of the second part to the parties of the first part for said described land in the sum of Ten Thousand ($10,000.00) Dollars; if the party of the second part does not exercise the within option within said sixty (60) days then this agreement to be null and void." (Emphasis supplied).
Plaintiff, being interested in the land for its sand content, went there on December 6, 1949 while one Gibbs was digging test holes. At that time, according to the findings of fact by the chancellor, Taylor said to Hartman, "I'm going to take this." Gibbs then asked, "Well, how about the test from the State Highway?" Taylor replied, "Regardless of whether it passes their specifications or not, I'm going to use my own judgment. I think it's all right. I'm going to take it." About Christmas, 1949 the plaintiff offered the defendants
$500 to $1,000. Defendants declined to accept the partial payment stating, "No, we'll not take any, we'll get everything in shape and then clean all our business up at one time."
The option on its face expired on January 25, 1950.On February 2, 1950, defendants sent a written notice to the plaintiff that the option had expired. On February 10, 1950 plaintiff offered to pay the full purchase price.
An option is an offer and when accepted there is a valid and binding contract: Phillips et ux. v. Tetzner, 357 Pa. 43, 45, 53 A.2d 129. No particular form of acceptance is necessary in the absence of a provision to that effect in the option: Detwiler et al. v. Capone et ux., 357 Pa. 495, 500, 55 A.2d 380. There can be no doubt that under the facts above described plaintiff accepted the option*fn1 unless, as the ...