Peerless Department Stores, Inc. v. George M. Snook Co.

I am unable to follow my associates in the conclusion which they have reached in this case.

(1) The offer made by the Kaufmans to the Snook Company was sufficient in form and substance. It contained the price and terms offered and, if accepted, would have constituted a valid and binding contract between the offeror and the owner of the property. The fact that the offer contained a provision for liquidated damages in case of its breach by the offeror did not make the offer a conditional one nor one in the alternative, or otherwise affect its validity. Wise v. United States,249 U.S. 361, 63 L. Ed. 647, 39 Sup. Ct. 303; Sun P. P. Ass'n. v.Moore, 183 U.S. 642, 46 L. Ed. 366, 22 Sup. Ct. 240; Yost v.Wills, 86 W. Va. 71, 102 S.E. 728; Beury v. Fay, 73 W. Va. 460,80 S.E. 777; Wilkes v. Bierne, 68 W. Va. 82, 69 S.E. 366, 31 L.R.A. (N.S.) 937; Charleston Lumber Co. v. Friedman,64 W. Va. 151, 61 S.E. 815; Brown v. Friedberg, 127 Va. 1,102 S.E. 468; 17 C. J., p. 931; 58 C. J., p. 982.

(2) The notice given by the Snook Company to Peerless Stores of the receipt of this offer was sufficient. It gave in complete detail all the elements of the offer, except the name of the offeror and the name of the holder of the deposit. This was all the lessee had any right to require. Its whole right was based upon the provision contained in the lease that it should have an option to purchase the leased property at the same price and on the same terms accepted by the lessor from any other proposed purchaser. The lessee, therefore, was concerned only with price and terms. These it was furnished. It may be true that it had a curiosity as to the offeror's identity, and as to the use to be made of the property when purchased, or as to other matters connected with the transaction; but it only stipulated for price and terms. If these other matters were important, they should have been provided for in the option contained in the lease. No decided case has been found where this question has been directly answered, but cases are reported in which an offer which did not disclose the *Page 86 offeror's name has been enforced without contest on that score.New Atlantic Garden, Inc. v. Atlantic Garden Realty Corp.,201 A.D. 404, 194 N.Y.S. 34; First Nat. Exchange Bank ofRoanoke et al. v. Roanoke Oil Co., Inc., 169 Va. 99,192 S.E. 764.

(3) Time was of the essence of this as all other options for the purchase of real estate. Womack v. Agee, 79 W. Va. 22,90 S.E. 792; John v. Elkins, 63 W. Va. 158, 59 S.E. 961; Fulton v.Messenger, 61 W. Va. 477, 56 S.E. 830; Pollock v. Brookover,60 W. Va. 75, 53 S.E. 795, 6 L.R.A. (N.S.) 403. The lessee was given seven days' option, this was all it contracted for, presumably all it asked. The fact that it was suspicious as to the bona fides of the offer could not suspend the running of this seven-day period. The lessee was given this seven days within which to determine all matters bearing upon its desire to accept the offer on its own behalf. During this period the question of price and terms, ability to finance, and all others, including the bona fides of the offer had to be determined. Otherwise, when would this period begin to run? Suppose the lessee had continued its investigation for four days or eight days or thirty days; would the starting of the seven days be thus deferred? The option was for seven days and no more; and the lessee was specifically notified that this limitation would be insisted upon. Could such a lessee extend the option by pretending suspicion as to its bona fides?

(4) The sales contract subsequently entered into and spread on the records in the office of the Clerk of the County Court was not a new sale and did not embody or rest upon a new offer. The original offer expressly provided that if the lessee did not exercise its option to purchase, the offeror and the landlord should enter into precisely this form of contract; and the sales contract itself fully recites and refers to the original offer and its acceptance, thus showing that the two papers relate to one and the same offer and transaction. The alleged differences in terms between the original offer and this final contract are too trifling to make them distinguishable. *Page 87

(5) The improvements claimed to amount to $13,800.00, made by the lessee to the premises, give rise to no equities in its favor. They were made under the express provisions of the lease and with the express understanding that the lease might be terminated after five years in the manner in which it was brought to an end. The lessee, therefore, simply expended these funds with full knowledge that the lease might be thus terminated, and at its own risk.

I am clearly of the opinion, therefore, that the bill of complaint presents no ground for any equitable relief, and that the court below correctly sustained the demurrer thereto.