Thomason v. Bescher

Brief Fact Summary.

J.C. and W.M. Becker (Defendants) signed and executed a writing under seal promising “in consideration of one dollar” to sell and convey a tract of timber to Thomason (Plaintiff) provided he demand the deed and convey $6,000 by August 18, 1917. 

Synopsis of Rule of Law.

.  It is the accepted principle of common law that instruments under seal require no consideration.

Facts.

J.C. and W.M. Becker (Defendants) signed and executed a writing under seal promising “in consideration of one dollar” to sell and convey a tract of timber to Thomason (Plaintiff) provided he demand the deed and convey $6,000 by August 18, 1917.  

The Plaintiff notified the Defendants that he would take the timber and pay the money, but the Defendants told him their “option” was withdrawn.  Although the dollar recited in the agreement was not actually paid, the Plaintiff was ready and willing to pay the $6,000 at all times.  The trial court awarded specific performance, and the Defendant appealed.  

Issue.

Was the plaintiff entitled to specific performance?

Held.

Yes. 

·         Options containing a continuing offer to sell and constituting a contract, binding on the parties because in the form of a covenant under seal, serve their purpose in keeping the offer open for the specified time and preventing a withdrawal by the vendor. 

The Plaintiff was ready to pay and the Defendants refused to accept payment or tender the timber.  The Plaintiff was entitled to specific performance.

Dissent.

None

Concurrence.

None

Discussion.

The Plaintiff was entitled to specific performance under the option contract, notwithstanding the fact that the dollar stated was not actually tendered, because the agreement was signed under seal.