Guss v. Nelson, 200 U.S. 298 (1906)
Guss v. Nelson
No. 124
Argued December 12, 1905
Decided January 15, 1906
200 U.S. 298
APPEAL FROM AND IN ERROR TO THE SUPREME
COURT OF THE TERRITORY OF OKLAHOMA
Syllabus
Oklahoma City v. McMaster, 196 U.S. 529, followed, to effect that the review by this Court of final judgments in civil cases of the Supreme Court of Oklahoma is by writ of error under § 9 of the Act of May 2, 1890, 26 Stat. 81, and not by appeal. The act of 1874 in regard to territorial courts does not apply.
An option to purchase if the buyer likes the property is essentially different from one to return the property and cancel the contract; in the former case, title does not pass until the option is determined; in the latter it passes at once, subject to the right to rescind; and, as held in this case, if the option to rescind is not exercised and the property returned according to its terms, the sale is complete, and the promise to pay the balance of the purchase price becomes absolute.
On May 28, 1900 at Guthrie, Oklahoma Territory, the parties to this action entered into the following contract:
Memorandum of agreement made and entered into this 28th day of May, 1900, to-wit, as follows: J. T. Nelson agrees on his part to turn over 25 percent of the capital stock of the following coal companies located in the Creek Nation, to-wit: Sapulpa, Choctaw, Catoosa, Wewoka, Red Fork, Neyaka, Concharty, Tulsa, Car Creek, and Broken Arrow Mining Companies, to the following persons: U. C. Guss, W. H. Gray, F. H. Greer, and J. W. McNeal. The consideration of the delivery under which the above-listed stock and other stock as hereinafter described is as follows: this also includes the delivery of the records belonging to each of said above-named companies, the seals and other records that in any way belong to any of said companies. A payment of $500 is to be made in cash upon delivery of the above-named property, and additional property in the way of stock hereinafter listed. The $500 is to be considered an option on all said property until the 4th day of March, 1901. At that date, the above-named parties are to pay to Nelson an additional sum of $4,500.00 (four thousand, five hundred dollars), or in lieu thereof to turn back to said Nelson all the property delivered by him. In addition to the above-mentioned 25 percent of the capital stock aforesaid, which the said J. T. Nelson represents he owns in his own right, he agrees to turn over and deliver enough more stock to make the aggregate sum of stock delivered by him under this contract as follows:
[Here follows a list of companies and number of shares of stock each.]
The $500.00 above mentioned is to be earnest money, to be forfeited in case the balance of payment is not paid. Nelson also agrees to give U. C. Guss his proxy as director in each of the above-named companies until such time as it may be convenient for him to resign and Guss or someone else be elected to fill the vacancy.
On April 6, 1901, Nelson brought suit in the District Court of Logan county, Oklahoma Territory, to recover the additional sum named in the contract. After answer, the case was tried by the court without a jury, and judgment rendered in his favor on February 20, 1903, for $4,500 and interest. This was affirmed by the supreme court of the territory, 14 Okl. 296, and its judgment was brought here both by appeal and writ of error.