Orrin J. David, Appellant, v. David H. Balmat, Respondent

Orrin J. David, Appellant, v. David H. Balmat, Respondent, Option to purchase the vendor’s interest in land, provided a pending suit shall have been terminated — it cannot be enforced until the suit is terminated. ^November 8, 1901, David H. Balmat agreed to convey to Orrin J. David all the interest which he had individually or as trustee in and to the talc, talcoua rock and soapstone upon a certain parcel of land at any time within three months from the date of the agreement for a specified price, “provided, however, that a certain suit now pending between Mary A. Smith, as plaintiff, and myself and others as defendants, has, at the time, of the acceptance of this option, been fully terminated without restricting my right to convey said premises; and in case said suit is not terminated within said term of three months, then this option may be extended until thirty days after said suit is finally terminated and decree entered therein and right of appeal expired. * Held, that the acceptance of the option on Hay 20, 1902, and before the suit referred to in the agreement had been terminated, did not entitle David to insist. . .upon a conveyance from Balmat. Appeal by the plaintiff, Orrin J. David, from a judgment of the. Supreme Court in favor of the defendant, entered, in the office of the clerk of the county of St. Lawrence on the 16th day of March,. 1903, upon the decision of the court, rendered after á trial at the St. Lawrence Special Term, sustaining the defendant’s demurrer and dismissing the plaintiff’s complaint. ' The complaint alleges that the defendant on the 8th day of November, 1901, made and delivered to the plaintiff an option or agreement in writing the material parts of which are as follows : “ I, David H. Balmat for value received, hereby agree to sell and? convey to O. J. David * * * all the right, title and interest? which I individually or as trustee have, in and" to all the talc, talcousi rock and soapstone in and upon all that tract or .parcel of land * * * containing about 150 acres, at any time within three months from the date hereof for fifteen thousand dollars, to be paid as hereinafter .provided: Such sale to be made subject to the term of a. certain lease heretofore given by me to said David iand now held by the Union Talc Company, which lease said David is to assume and fulfill on my part; and provided, however, that a certain suit now-pending between Mary A. Smith as plaintiff, and myself and others, as defendants, has, at the time of the acceptance of this option been fully terminated without restricting my right to convey said premises and in case said suit is not terminated within said term of three-, months, then this option may be extended until thirty days after said suit is finally terminated and decree entered therein and 'right: of appeal expired. * ” The complaint also alleges : “ That on or about1 the 20th day of May, 1902, and before the suit referred to in said option or agreement. was terminated this plaintiff accepted said option to purchase,, serving a notice of said acceptance on defendant ” and that the-plaintiff tendered performance of said agreement 'on his part but that the defendant refused to perform said agreement on his part. This action, is brought to compel, specific performance of said contract. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained and the complaint dismissed. Earl Bancroft, for the appellant. Ledyard P. Hale, for the respondent. [MAJORITY — Chase, J.:] Chase, J.: The complaint having alleged that the suit mentioned in the agreement remained undetermined, the question is presented whether the plaintiff could compel the defendant to convey to him his right, title and interest individually and as trustee in and to said talc, talcotis rock and soapstone before such termination. Clearly there was nothing to prohibit the defendant from including in the agreement a provision postponing the plaintiff’s right to enforce the option until a time subsequent to the final termination of the pending litigation. Such provision in the agreement is for the protection of the defendant individually and as trustee as well as the plaintiff. That the right of the plaintiff to insist upon a conveyance under the agreement was expressly postponed until the final - termination of the pending litigation and the time to appeal from the judgment entered therein had fully expired seems to us to be clear and certain. The meaning of the contract is not obscure, ambiguous or doubtful and the court was right in sustaining the demurrer. The judgment should be affirmed, with costs. All concurred. Judgment affirmed, with costs.