Harvard v. Anderson

McCLINTOCK, Justice

(dissenting).

Under the portion of the trial court’s finding approved by this Court, Harvard for valuable and adequate consideration *884agreed to convey the farm to his son at any time within a year from January 7, 1971 upon payment of $30,000 cash. This agreement in writing contained all the provisions necessary for an irrevocable and enforceable option contract. It is not denied that there was no compliance with this contract but on November 11, 1971 exhibit 3 was signed by all the parties. This “agreement” the trial court finds “constitutes an amendment” to the original option agreement. The trial court also finds that there was adequate consideration for the modification as well as the original option but the majority, quite properly I think, rejects the finding as to consideration for the amendment.

However, it does not follow that there remained no offer which could be accepted by plaintiffs’ predecessors so as to constitute a fully bilateral and enforceable contract. Until the amendment Harvard was without power to withdraw his offer since it had been based on consideration. After that amendment there remained an open offer, unsupported by consideration, and therefore subject to withdrawal at any time. However, on January 7, 1972, the date upon which plaintiffs’ predecessors in interest tendered payment of the $15,000 then due in accordance with the terms of the amended offer, the offer had not been withdrawn and at that time there was brought into existence a contract for the sale and purchase of land.

The majority opinion concedes that there is substantial authority, including an early decision of this 'Court1 that an option contract (offer) although unsupported by consideration may be accepted before it expires or is withdrawn. The majority state that there was no acceptance of this “agreement” standing alone and refuse to permit a reference back to the original option. While I concede that the writing of November 11, standing alone, is not a sufficient writing that its acceptance would permit the perfection of a binding contract, I think the majority in this respect ignore the finding of the trial court that it constituted an amendment. I think that this finding was supported by the evidence.

In my opinion, then, after November 11, 1971, and until January 7, 1972 there remained in effect a continuing offer, represented by the original option as amended as to terms of payment, unsupported by consideration and withdrawable at any time, but which as of January 7, 1972 had not been withdrawn and which was accepted by the acts of plaintiffs’ predecessors on that date, as amply shown by documentary and oral evidence. I am in agreement with the legal propositions advanced in the majority opinion but must dissent from the application of these principles to the facts of this case. I would affirm the judgment of the district court.

. Frank v. Stratford-Handcock, 13 Wyo. 37, 77 P. 134, 138, 67 L.R.A. 571, 110 Am.St.Rp. 963.