International Speedways, Inc. v. Aman

161 S.E.2d 50 (1968)

1 N.C. App. 227

INTERNATIONAL SPEEDWAYS, INC., Plaintiff, v. L. G. AMAN and wife, Bernice H. Aman, Defendants.

No. 68SC130.

Court of Appeals of North Carolina.

May 15, 1968.

*52 Venters & Dotson, by Carl V. Venters, Jacksonville, for plaintiff appellant.

Ellis, Hooper, Warlick & Waters, by Albert J. Ellis, Jacksonville, for defendants appellees.

CAMPBELL, Judge.

"An option in a lease, which gives the lessee the right to purchase the leased premises at any time before the expiration of the lease, is a continuing offer to sell on the terms set forth in the option, and may not be withdrawn by the lessor within the time limited. The lease is a sufficient consideration to support specific performance of the option of purchase granted therein. * * * Moreover, the real consideration in an agreement to convey land is the contract *53 price." Crotts v. Thomas, 226 N.C. 385, 38 S.E.2d 158.

The defendants assert: "To comply with the requirements of the option agreement, it was incumbent upon the plaintiff to have a survey made and to tender or pay to the defendants the agreed purchase price per acre as set out in the agreement before the defendants became obligated to convey the locus in quo."

The option as contained in the lease agreement in the instant case did not impose this requirement upon the plaintiff. There was no requirement for the survey to be made prior to exercising the option. The lease agreement specifically provided that: "at any time within the original two (2) year term of this lease" the option could be exercised and "in the event the Lessee elects to exercise this option it shall give to the Lessors notice in writing of its election." There was no provision for payment or tender of payment until the survey had been completed. It was not incumbent upon the lessee to have a survey made until the option had been exercised. When the plaintiff notified the defendants in writing by the letter of 17 June 1966, it was prior to the termination of the two year term and constituted a valid exercise of the option as contained in the lease agreement. Having exercised the option by accepting the offer of sale on the terms set forth in the agreement, the plaintiff was under no obligation to tender the purchase price until the completion of the survey.

Where the terms of the option do not require payment of the purchase price or any part thereof before it is exercised, no tender must be shown. The terms of the opition may require merely that notice be given of the exercise thereof and may be such as not to require the payment of the purchase money in order to exercise the option. This was the case here.

This case is controlled by the reasoning in Kottler v. Martin, 241 N.C. 369, 85 S.E.2d 314.

For the reasons herein stated, the ruling of the trial court in sustaining the demurrer ore tenus is

Reversed.

BROCK and PARKER, JJ., concur.