Appeal from decree of Court of Common Pleas of Butler County, Dec. T., 1951, No. 5, in case of Orville D. Baker v. Tora Brennan, Helga Christianson, Raynard Christianson et al.
Gilbert J. Helwig, with him Carmen V. Marinaro, Richard C. Bremer, and Reed, Smith, Shaw & McClay, for appellant.
Lee C. McCandless, with him McCandless & McCandless, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen and Mr. Justice Roberts dissent.
This appeal lies from a decree entered in an equity action, a decree which, by sustaining preliminary objections and dismissing the complaint, terminated the action.
On December 10, 1938, Orville D. Baker entered into a written agreement with Raynard Christianson under the terms of which the latter gave Baker an option to purchase a 70 acre tract of land and improvements thereon situated in Butler County, a tract owned by Raynard Christianson and six other persons (Christiansons). Baker agreed to pay "a sum to be agreed upon" when the option was exercised which sum was not to be in excess of $30,000. No time for the exercise of this option was provided. Raynard Christianson signed this agreement as an individual, but, written in long hand at the beginning of the agreement and interlined on the original agreement after Raynard Christianson's name, the following statement appeared: "In his own right and as agent for the other owners".
Prior to the execution of this option agreement, Baker, by virtue of two leases made in 1937, was in possession of this tract of land upon which he operated a restaurant and public golf course known as
"Oak Hills Public Golf Course". Baker still remains in possession of the land and improvements thereon.*fn1
From Baker's pleadings, it appears that, from the time of the option agreement until the institution of this action, the following took place: (1) Christiansons requested Baker to exercise the option on December 30, 1940;*fn2 (2) Baker and Christiansons entered into three new leases for the property -- December 31, 1941, March 8, 1946 and December 23, 1948 -- in none of which leases was any reference made to the option agreement; (3) on June 28, 1948, Baker notified Raynard Christianson of his desire to exercise the option to purchase and to pay for the property $30,000.
On October 2, 1951 -- approximately three and one-fourth years after the alleged exercise of the option -- Baker instituted this equity action in the Court of Common Pleas of Butler County against Christiansons seeking specific performance of the option agreement and "such other and further relief" as justified under the circumstances. On November 13, 1951, Christiansons filed preliminary objections which raised the following defenses: (a) the Statute of Frauds barred the action since the complaint did not aver that Raynard Christianson's authority to act as agent for Christiansons was in writing; (b) laches; (c) that the option had expired before its exercise, a reasonable time having elapsed since the grant of the option. Approximately five and two-thirds years after filing of the ...