author: CULLEN, Commissioner.

text:
    Claude YOUNG et al., Appellants, v. TENNESSEE GAS AND TRANSMISSION COMPANY, Appellee.
    Court of Appeals of Kentucky.
    April 26, 1963.

      Clay & Edwards, Mt. Sterling, for appellants.
    Lewis A. White, Mt. Sterling, Roger A. Bryon, Owingsville, R. Vincent Goodlett, Hazelrigg & Cox, Frankfort, for appellee.
   CULLEN, Commissioner.

The appeal is by landowners from a judgment which determined and awarded to them compensation for the condemnation of .a pipeline easement across their lands, and which rejected their application for a mandatory injunction requiring .removal of •the pipe line from their lands.

The principal difficulties in the case arise from the fact that when the appellee, Tennessee Gas and Transmission Company, ■commenced its condemnation proceedings, it had failed to discover that Mrs. Carrie Myers was an owner of part of the land over which the pipe line was to run, and therefore did not include her as a party.

Claude Young and wife owned two parcels of farm land, separated by a triangular-shaped • parcel owned by Mrs. Young .and her mother, Mrs. Myers. (An adjoining parcel owned solely by Mrs. Myers also is involved, but it will be discussed separately at a later point in this opinion.) The pipe line was to run across the southern Young parcel, then on across the triangular parcel and the northern Young parcel.

Believing that Young and wife owned all three parcels, the gas company named them only as parties in the county court. The commissioners made an award of $20,-270. Young and wife questioned the right of the company to condemn, and the county court entered judgment holding that the company did not have the right to condemn (on the ground that the company had not undertaken to negotiate with the Youngs). The company appealed to the circuit court, and after a hearing the circuit court ruled that the company did have the right to condemn, and entered an order authorizing the company to take possession upon paying to the Youngs or to the clerk of the court the amount awarded by the commissioners. (The Youngs refused to accept the money and it was deposited with the clerk.) The company and the Youngs then each filed exceptions to the commissioners’ award.

The company then began construction of the pipe line across the southern Young parcel. When the workers were about to enter upon the triangular parcel the Youngs, claiming to act as agents of Mrs. Myers, stopped the workers and asserted for the first time Mrs. Myers’ ownership in the triangular parcel. Three days elapsed during which the company attempted to work out a settlement with Mrs. Myers. Then, on June 18, 1959, the company obtained from the circuit court, on an ex parte motion, a restraining order against the Youngs and Mrs. Myers, prohibiting them from interfering with ■ the construction of the pipe • line. On the same day the company obtained an order making Mrs. Myers a party to the condemnation suit and caused a summons to be issued against her (which was served the following day). That night the company moved its equipment onto the triangular parcel and proceeded thereafter to complete construction of the pipe line across that parcel and the rest of the Young land. A motion by the Youngs and Mrs. Myers to dissolve the restraining order was overruled and the order was transformed into a temporary injunction (which later was upheld on proceedings in this Court).

Thereafter Mrs. Myers filed a counterclaim in the condemnation suit seeking a mandatory injunction requiring the company to remove its pipe line from her land, and also filed exceptions to the commissioners’ award.

In May 1960 the circuit court entered a summary judgment dismissing Mrs. Myers’ counterclaim. This judgment recited that the amount of the commissioners’ award theretofore paid to the clerk of the court was being held for all of the landowners, including Mrs. Myers, and further recited that the original order of possession authorizing the company to take possession of the easement, “including the portion of same owned by * * * Carrie Myers,” was affirmed.

Later the case was tried before a jury in the circuit court on the exceptions to the commissioners’ award, resulting in a verdict and judgment awarding $4,000 damages to the two Young parcels and $410 damages to the Mrs. Young-Mrs. Myers parcel. The Youngs and Mrs. Myers accepted payment of these amounts and then took the present appeal. (The appeal is from the summary judgment also, because it was not made final under CR 54.02 when it was entered.)

The first contention of the appellants is that the summary judgment was erroneous; that Mrs. Myers was entitled to a mandatory injunction requiring removal of the pipe line from her land because an easement across her land never was validly condemned; and that an easement cannot be condemned by an ex parte restraining order.

It is true that at the time the company entered upon Mrs. Myers’ land it had no right to do so, because she had not then been made a party to the condemnation proceeding. But the very next day summons was served on her and she did become a party. Perhaps according to pure technicalities the company should have been required to commence the proceedings anew in the county court and should not have been permitted to take possession of Mrs. Myers’ land until in such new proceedings an order of possession had been entered. However, she suffered no real prejudice from being brought into the suit for the first time at the circuit court level. The only thing she could have litigated in the county court was the right of the company to condemn, which could be relitigated in the circuit court. She could not have raised in the county court any question as to the amount of compensation. Since the comr missioners 'in the county court returned an award for what they thought the damages were to the land affected by the easement, without regard to divided ownership, the amount paid into court by the company pursuant to the award was adequate to protect her interest in ;the land.

It seems to us that the only wrong inflicted upon Mrs. Myers was a temporary trespass by the company between the time the company entered upon her land and the time she was made a party in the circuit court. She did not elect to seek damages for the temporary trespass, but instead sought to oust the company from- her land. But at the time she sought the ouster she was a party to the condemnation suit, money was in the hands of the clerk to protect her interests, and all of the processes of the circuit court were available to her to secure fair compensation for the permanent taking of her property. In our opinion there was a substantial compliance with the condemnation statutes as to Mrs. Myers, so the argument that her land was taken by a restraining order and not by condemnation has no merit.

The cases relied upon by Mrs. Myers are not controlling because they all involved situations where land was taken without any attempt to condemn. In the instant case the company was at all times attempting in good faith to effect a valid condemnation, and only by inadvertence failed to make Mrs. Myers a party in the county court.

Since Mrs. Myers was seeking equitable relief from the court, in the form of an injunction, certainly the court was entitled to consider the equities of the situation. All of the equities here are on the side of the company. So even if it were to be considered that there was a taking of Mrs. Myers’ property by the company without a strictly valid condemnation, equity would not require the company to remove its pipe line. See Bartman v. Shobe, Ky., 353 S.W.2d 550; Faulkner v. Lloyd, Ky., 253 S.W.2d 972.

The second contention of the appellants is that they were entitled to recover, as damages for improper construction of the pipe line, the cost of restoring the soil over the line to its former condition, in addition to standard condemnation damages. The trial court permitted evidence to be offered as to the condition of the soil and the cost of restoring it to its claimed former condition, but instructed the jury that the measure of total damages was the difference in before and after values of the entire tract. The appellants argue that the measure of damages for a permanent negligent injury to land is the cost of restoration. The cases relied upon by the appellants either involved a temporary injury or stated a rule which is no longer followed in this jurisdiction. The established present measure of damages for a permanent injury to real estate is the difference in market value. Chapman v. Beaver Dam Coal Co., Ky., 327 S.W.2d 397; Blue Diamond Coal Co. v. Press Eversole, Ky., 253 S.W.2d 580; B. & B. Oil Co. v. Townsend, 301 Ky. 667, 192 S.W.2d 953; City of Jackson v. Haddix, 280 Ky. 436, 133 S.W.2d 547.

Actually, what the appellants seem to want in this case is damages for the difference in market value of their land, plus the cost of restoring the soil to its former condition. The jury was permitted to consider evidence concerning the claimed injury to the soil, and the cost of restoring it, as bearing on the diminution in value, and certainly that is all the appellants were entitled to.

The third contention of the appellants relates to a parcel of land owned by Mrs. Myers individually, which adjoined the southern Young parcel and the triangular Mrs. Young-Mrs. Myers parcel. A short access road along the line between the latter parcels connected Mrs. Myers’ separate parcel with a county road. Mrs. Myers claimed to own the access road in fee simple. The pipe line crossed the access road but did not touch Mrs. Myers’ separate parcel. It is contended that the trial court erroneously refused to permit any recovery for damages to the separate parcel or to the access road, with the result that there was no valid condemnation as to them.

As concerns the separate parcel, the argument is that it was being operated, along with the two Young parcels and the triangular parcel, as a single farm unit, and therefore should have been considered, for the purpose of resulting damages, as part of the land crossed by the pipe line. However, statements by the appellants on the trial refute this claim. Furthermore, the claim of damages to this parcel was asserted only in an amended answer tendered on the second day of the trial, which the court would not permit to be filed, and we think the court did not abuse its discretion in not allowing the amendment to be made at such late date. Also, the topography of the separate parcel and its position in relation to the other parcels are such that it could not have sustained any dafnage by reason of the pipe line’s crossing the other parcels.

As concerns the access road, the contention is that the jury should have been authorized and directed to find separate damages to it. We think this is mere quibbling. The jury knew what land the easement crossed because the jury viewed the premises. Mrs. Myers was a party and everyone understood that compensation was to be awarded to the parties for all land owned by them that was crossed by the easement. Whether the access road was separately owned by Mrs. Myers, as she now claims, or was a part of the triangular tract owned by her and her daughter, as was assumed on the trial, is a question that could only affect the division of the award between the two women, and not the total amount of the award, and since the amount of damage attributable to the crossing of the access road alone could not be substantial we think no real prejudice could have resulted from the failure to separately determine on the trial the damages to the access road.

The appellants make numerous other contentions which we shall dispose of summarily.

The petition sufficiently described the land sought to be condemned by setting forth with particularity the bounds of the easement, without describing the complete boundaries of each tract of land that the easement would cross.

No prejudice resulted from the one-day delay in hearing the appellants’ motion to dissolve the restraining order.

No prejudice resulted from the court’s allowing appellants’ counsel only 10 dáys, instead of the requested 30 days, in which to file brief in opposition to the motion for a summary judgment.

The trial court did not abuse its discretion in denying appellants’ motion for a continuance, on the ground of surprise, after the court had refused to. permit the filing of the amended answer that was tendered on the second day of the trial.

The suit did not involve any “conflicting claims” within the meaning of KRS 416.300.

The appellants were not entitled to dismiss their counterclaim as a matter of right after a motion for summary judgment had been filed. CR 41.01, 41.03.

The condemnor is not required to advance the condemnees’ costs on an appeal to this Court. Music v. Big Sandy and Kentucky River Railroad Company, 163 Ky. 628, 174 S.W. 44.

The instructions were not erroneous.

The offered testimony concerning fear of explosion did not meet the requirements laid down in Gulledge v. Texas Gas Transmission Company, Ky., 256 S.W.2d 349.

The judgment is affirmed.


source: Caselaw Access Project

author: MOREMEN, Judge.

license: Public Domain

text:
    John Wesley CALL et al., etc., Appellants, v. John George CALL et al., Appellees.
    Court of Appeals of Kentucky.
    April 26, 1963.

      Jack T.' Page, Pikeville, for appellants.
    L. D. May, Hobson & Stephens, E. N. Venters, Pikeville, for appellees.
   MOREMEN, Judge.

This is an appeal from a judgment of the Pike Circuit Court ordering the sale of real estate for the purpose of reinvestment of the proceeds under KRS 389.040, which reads in part as follows:

“Remainder and contingent interest in real estate may be sold upon petition of any person having a present or vested interest, all persons in being having any interest in such estate being made parties to the action. If the court shall be satisfied that the interest of all concerned would be subserved by such sale, it shall adjudge accordingly; which judgment and sale thereunder shall invest the purchaser with all title of the present and future contingent claimants to the said real estate.”

Title to the property with which we are here concerned passed under the will of John Wesley Call. The specific provision reads:

“That the lower building known as the Funeral Parlor and now being used as an undertaking establishment now conducted by J. W. Call and Son go to my grandson JOHN GEORGE CALL, for and during his life time and at his death to his legal heirs, and I now bequeath same to him, so as to include the land and the buildings thereon, and this property extends to the Chesapeake and Ohio Railway Company’s Right of Way on the same parallel lines as locates the boundary itself.”

John Wesley Call was survived by his son, W. P. Call, and the latter’s two children, John George Call and Betty Call Stone. At the time of filing of this action on February 19, 1962, John George Call had two children, John Wesley Call, age 12 and Jennifer Louise Call, age 9; and his sister, Betty Call Stone, had three children, Carolyn Greer Stone Justice, William B. Stone Jr., and Winnie Stone.

John George Call and his wife, Jennette Call, filed the action as plaintiffs; John Wesley Call and Jennifer Louise Call, the unborn heirs of John George Call, W. P. Call and Betty Call Stone were made defendants and were properly summoned. A guardian ad litem was appointed for the infant children and the unborn heirs of John George Call. W. P. Call and Betty Call Stone filed a disclaimer to any interest in the property. Proof was taken and sale was ordered. After the sale exceptions were filed by the guardian ad litem and the plaintiffs. These were overruled. From the final order overruling exceptions to the commissioner’s report wherein the court found that said orders were final and there was no just reason for delay, this appeal has been prosecuted.

Appellant contends (1) the property was not appraised prior to the sale as required by law; (2) the court was acting beyond its authority in ordering the sale of property for cash; (3) the children in being of Betty Call Stone as well as the unborn heirs of Betty Call Stone were necessary parties to the action; and (4) a bond as required by KRS 389.040 was not executed prior to the entry of the judgment and order of sale.

We will discuss the points raised seri-atim and under the same numerical headings used by appellant.

(1) In fact, the property was appraised prior to the sale. On March 13, 1962, W. R. Wells appraised the property at $55,000. and on the same day William C. Pauley appraised it at $60,000. The property was sold on April 9, 1962, and was purchased for the sum of $70,000. The appraisal was not filed in the record until after the sale. All parties stipulated that the appraisers were competent, qualified men. The fact that the appraisal was filed after judgment seems of little importance to us. All parties were aware that one had been made and the information was available upon motion or request. There is nothing in subsection (1) of KRS 426.520 that requires that the appraiser’s report be filed in court before the date of sale.

(2) KRS 426.700 reads in part:

“Every sale made under an order of court must be public, upon reasonable credits to be fixed by the court, not less, however, than three months for personal, nor six months for real property # # »

In Miller v. Halsey, Ky., 327 S.W.2d 943, it was said:

“The statute provides that every sale of property made under an order of court shall be upon reasonable credits to be fixed by the court, which shall not be less than six months for real property. KRS 426.700, formerly § 696, Civil Code of Practice. Even had the judgment authorized the sale of the land for cash or on less than six months’ credit, it would have been erroneous and reversible on appeal unless it was clearly shown the error was not prejudicial.”

We believe it is clear from the record that no prejudice resulted from the failure to sell this property on credit. All parties agreed that the appraisers were highly competent men and the property was sold for $10,000 more than the highest appraisal.

(3) As noted in the language quoted from KRS 389.040, remainder and- contingent interests may be sold upon petition of any person having a present or vested interest, ail parties in being having any interest in such estate being made parties to the action. All those who were in being were made parties, either as plaintiffs or defendants, and all necessary parties appeared in this suit. In Goff v. Renick, 156 Ky. 588, 161 S.W. 933, the court, quoting with approval from Luttree v. Wells, 97 Ky. 84, 30 S.W. 10, said:

“[I]t is sufficient to say that section 491 of the Code (KRS 389.040) was designed to meet such cases, and that, although the remainder may be contingent, yet if the person in being in whom the remainder interest would have vested, if the contingency had happened before the commencement of the action, be properly before the court, as seems to have been the case here, a complete and perfect title may be passed under a proceeding conforming to the provision of that section and the subsequent sections of the Code regulating such proceedings.”

See also: McClure v. Crume, 141 Ky. 361, 132 S.W. 433; and Tierney Coal Company v. Bailey, 172 Ky. 362, 189 S.W. 241.

It may be remarked that there were three children of Betty Call Stone who were in being and who were not made parties to the action. We believe they were not necessary parties because if the contingency had happened before the commencement •of the action the title would have vested in the children of John George Call. If by reason of some tragedy all the children of John George Call had been destroyed, the property under another clause of the will would revert to the estate of the original testator to descend according to the laws of descent and distribution. The property then would have vested in testator’s son, W. P. Call, or in the event of his death it would have vested in Betty Call Stone. She was made a party to this action. We believe all correct and necessary parties were before the court.

(4) Finally, it is argued that the sale was defective because a bond was not executed prior to the entry of judgment and order of sale. Tierney Coal Co. v. Bailey, 172 Ky. 362, 189 S.W. 241. In the latter case, which involved a sale for reinvestment under Section 491 of the Civil Code of Practice, now KRS 389.040, it was said:

“There was no bond executed before the judgment ordering the sale, but, under repeated decisions from this court, a sale under the sections of the Code referred to may be ordered without the requirement of a bond. Luttrell v. Wells, 97 Ky. 84, 30 S.W. 10, 16 Ky.Law Rep. 812; Haggin v. Rogers, 97 S.W. 362, 29 Ky.Law Rep. 1263; Caulder v. Chenault, 154 Ky. 777, 159 S.W. 578; McClure v. Crume, 141 Ky. 361, 132 S.W. 433.”

The judgment is affirmed.


author: STANLEY, Commissioner.

text:
    Carroll T. PAYNE, Appellant, v. Ward TERRY, Appellee.
    Court of Appeals of Kentucky.
    April 26, 1963.

      Ephraim K. Lawrence, Jr., Edw. L. Phillips, Louisville, for appellant.
    Clement Block, Garland Hubbard, Louisville, for appellee.
   STANLEY, Commissioner.

The appellee, Ward Terry, sued the appellant, Carroll T. Payne, to recover judgment on the following instrument:

“Aug. 18 — 1954
Borrowed $7,000.00 to buy farm to be paid when house is sold.
/S Alice Payne
/S Carroll T. Payne”

The cosigner, Alice Payne, is the deceased wife of the defendant.

The complaint states that the farm and' house referred to in the instrument had been sold in January or February, 1959; ,that $1,000 had been paid; and that $6,000• remains due and unpaid.

■ In his original answer the defendant denied generally all the allegations of. the .complaint, then made a wholly irrelevant ■statement that “the farm in question” was purchased by his wife and paid for by her from a joint bank account, and denied “signing any promissory note with the plaintiff.” He did not otherwise deny signing the instrument sued on. The defendant entered a ■counterclaim, which will be hereinafter considered. An amended answer was filed, pleading the Statute of Frauds, particularly, HRS 371.010, subsection 7. This declares that no person may be held liable upon an agreement that is not to be performed within one year from the making thereof. Later the defendant tendered a second amended answer, pleading “the defense of the Statute of Limitations,” without specification, and afterward tendered a third amended answer, pleading nonpayment of taxes by the plaintiff. The court overruled the motions to file these two amendments.

The defendant’s deposition, taken for purpose of discovery, covered much that was irrelevant and immaterial. It was shown, however, that the farm referred to in the obligation was in Hardin County. With reference to his plea of non est factum, the defendant admitted the signature on the paper “looks like my handwriting,” but he repeatedly qualified his denial of signing it “because I don’t remember signing it.” This is not a denial sufficient to sustain the burden of non est factum. See Taylor’s Adm’r v. Scott, 218 Ky. 302, 291 S.W. 393. Specimens of his signature made during the course of the deposition for comparison clearly show that the signature was that of the defendant.

The whole defense in the case ■seems to be based upon the idea that the writing is not a promissory note with a definite agreement to pay the amount stated. This is a misplaced idea. It is well settled that no precise form is necessary to constitute a promissory note. An express promise to pay’the money is not necessary, for a promise founded on an acknowledgment of indebtedness may be implied in law if it can be fairly gathered from the writing itself. 10 C.J.S. Bills and Notes § 84; 7 Am.Jur., Bills 'and Notes, §§ 106, 107.

As a matter of syntax, “We,” as the subject of “borrowed,” with which the instrument begins, may be supplied. The word “borrow,” according to Webster, means “to receive something from another with the implied or expressed intention of returning the same or giving an equivalent ; the opposite of lend.” It is evident that where money is borrowed the identical money lent is not to be returned, but repayment will be made. So, the term here used imports a promise to pay the amount stated. Hart v. Burton, 30 Ky. 322, 7 J.J.Marsh 322; Harrow v. Dugan, 36 Ky. 341, 6 Dana 341. The instrument in the latter case recited, “I have borrowed” from a named person a stated amount, “which money was loaned to me,” etc. The court held an action could be maintained upon the instrument as a promissory note. Of like indefinite character were the writings held to be enforceable obligations in Kalfus v. Watts, 16 Ky. 197, Litt.Sel.Cas. 197, and Kendall v. Lewis, 10 Ky.Law Rep. 362, an abstract opinion of the Superior Court. See Annotation, 127 A.L.R. 650, covering the enforceability of instruments acknowledging a debt but containing no express promise to pay.

In the present instrument the provision as to the time of the payment of the obligation was fixed and determinable, namely, when a house on a farm to be bought should be sold.

With the determination that the instrument sued on is a promissory note, it is, of course, apparent that the pleading of the Statute of Frauds and the tendered pleading of the Statute of Limitations were properly denied. And we think it was not an abuse of discretion of the trial court to refuse leave to file the third amended answer.

We cannot accede to the appellant’s argument that the trial court committed error in granting the summary judgment to plaintiff instead of to him. The court had for consideration the pleadings and the defendant’s deposition containing a denial so equivocal and evasive as to constitute in reality an admission that he had signed the obligation sued on and had not paid it, as the plaintiff had alleged. There was, therefore, no “genuine issue as to any material fact” to be decided. CR 56.03. We think it was proper to render judgment on the complaint as a matter of law.

The defendant’s counterclaim merely asserted that the plaintiff was furnished room and board by the defendant for a period of twenty-two years and “the defendant further has made repeated [sic] upon the plaintiff for the said room and board for the past twenty-two years in the amount of approximately $10,000.” The plaintiff replied with a general denial. The counterclaim contained no allegation of a contract, either express or implied. It is readily apparent that it did not state a cause of action. Moreover, the defendant, in his deposition, stated that his wife was the plaintiff’s daughter and admitted there was no sort of agreement for the payment of board and lodging by her father.

The judgment is affirmed.

      . It may be observed, to avoid misunderstanding, that we are not concerned in this case with the question of negotiability of a note, in which the matter of uncertainty of the happening of a contingent event may be material. See 10 O.J.S. BiHs and Notes § 97.


author: SMITH, Justice.

text:
    Holland PAGE et al., Petitioners, v. TRAVIS-WILLIAMSON COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1, Respondent.
    No. A-9136.
    Supreme Court of Texas.
    May 8, 1963.
    J. C. Hinsley, Austin, for Travis-Williamson County Water Control.
    Bagby & Foshee, Austin, for Holland Page.
    Polk Shelton, Cofer & Cofer, Douglass D. Iiearne, Austin, for R. Ward Smith.
    House, Mercer, House & Brock, San Antonio, for Glove Indemnity Company.
   SMITH, Justice.

On December 17, 1955, Petitioner-Respondent, Holland Page, entered into a contract with Petitioner-Respondent, Travis-Williamson County Water Control and Improvement District No. 1, for the construction of a water system. Thereafter, Page subcontracted all of the digging of ditches, laying of pipe and back-filling to Petitioner-Respondent, R. Ward Smith; Page was to furnish all of the materials. On December 20, 195S, the Water District’s engineer issued Page a work order instructing him to begin work on the contract and advising that the agreed working time of 210 working days would be computed from December 30, 1955. Page and Smith proceeded with the construction of the water system.

In the early part of 1957 the work on the project was nearing completion. On May 10, 1957, after making an inspection of the work, the engineer for the Water District furnished Page a list of deficiencies (commonly referred to in the record as a “gig sheet”). Thereafter, additional work was done; and on July 10, 1957, a second and final “gig sheet” was prepared by the Water District’s engineer. The two “gig sheets” indicated that they were not to be considered inclusive of all deficiencies and stated that other deficiencies would be made known to Page as they were observed. Certain efforts were made by Page and Smith toward remedying these deficiencies. At this point, a controversy arose between the Water District, Page and Smith as to whether the alleged deficiencies had been corrected and whether or not some of the alleged deficiencies amounted to unreasonable demands.

On July 29, 1957, the engineer for the Water District advised Page that the working days on the contract would expire at midnight on July 31, 1957, and that from that time the liquidated damages provision of the contract would be invoked. The engineer, thereafter, periodically advised Page as to the number of days of liquidated damages which had been assessed during each month.

In March of 1958 all work ceased on the project. The Water District directed Page to proceed; and upon his failure to do so, and upon the failure of the surety on his bond to do so, the Water District advertised for bids to carry the project to final completion. The completion contract was awarded to the Bland Construction Company, and the work was finally accepted by the Water .District and their engineer on October 3, 1958.

In March of 1960 Page brought this suit against the Water District for certain •■amounts alleged to be due for labor and material furnished the Water District by Page. Page’s suit was also against Smith and his surety on the subcontract. As against the Water District, Page asserted that the prime contract had been substantially completed ; and as against Smith and his surety, it was alleged that the subcontract had not been substantially completed. Smith filed a cross action against the Water District and a counterclaim against Page for damages for certain extra work he had furnished the Water District, and for which he had not been compensated. The Water District counterclaimed against Page and his surety seeking liquidated damages because of Page’s alleged failure to substantially complete the work under the contract within 210 working days.

Upon the trial on the merits in response to special issues, the jury found that on July 31, 1957, the work under Page’s contract with the Water District had been substantially completed by Smith and Page. The jury further found that the reasonable cost of the work and materials necessary to remedy the deficiencies listed in the two “gig sheets” dated May 10, 1957, and July 10, 1957, was $14,990.00. The trial court rendered judgment upon such verdict for Page against the Water District for $29,629.95, and for Smith against the Water District for $15,854.77, together -with interest on such sums from March 15, 1958. The Water District recovered nothing on its counterclaim against Page and his surety for liquidated damages.

The Court of Civil Appeals has held that the actual cost of completion ($39,234.07) under the Water District’s contract with Bland Construction Company, and not the reasonable cost of completion of the work listed on the two “gig sheets” ($14,990.00), is the proper charge to be made against the amount due Page and Smith from the Water District. Therefore, the judgment of the trial court was reformed and affirmed. As against the Water District, Page was given a judgment for $1,608.99, and Smith was awarded a take nothing judgment. Tex.Civ.App., 358 S.W.2d 158.

The application for writs of error of Page, Smith and the Water District have been granted. We will first dispose of the points of error asserted by Page and Smith.

Measure of Damages

After concluding that the evidence amply supported the jury finding that the work done by Page and Smith under the contract had been substantially completed, the Court of Civil Appeals applied Section 42(b) of the contract for the determination of the charge to be made against the amount due Page from the Water District. Page and Smith contend that the Court of Civil Appeals has erred in resorting to Section 42(b), so as to charge the actual cost of completion under the Bland contract ($39,234.07) rather than the reasonable cost of completion of the deficiencies listed in the two “gig sheets” ($14,990.00) against the amount due Page from the Water District since Section 42 applies only in instances of abandonment before the work has been substantially completed. We disagree with this contention.

Section 42 is not limited in its application to instances of abandonment before substantial completion; it is also applicable should Page fail to comply with the orders of the engineer, when such orders are consistent with this contract. In such event, the Water District is authorized to let a new contract for completion of the work, and if the cost of the completion work increases the cost to the Water District, such increase may be charged to Page. Thus, when Page and his surety failed to resume work after being ordered to do so by the engineer, the Water District properly let the Bland contract, and the costs to the Water District under such contract were properly charged against the amount the Water District owed Page. The Court of Civil Appeals committed no error in reducing Page’s recovery against the Water District to $1,608.99, and in ordering that Smith take nothing in his cross action against the Water District.

Adjustment of Accounts

All of the work which was completed by Bland Construction Company related exclusively to the work which was to have been performed by Smith under his subcontract with' Page. For this reason Page asserts that he is entitled to recover from Smith and/or his surety, Globe Indemnity Company, any amount charged against him for the failure to fully complete the work.

The trial court deducted from the amount due Page from the Water District the amount found by the jury to be the reasonable cost of completion of the work listed in the two “gig sheets” ($14,990.00) and allowed a deduction of that same amount from the total amount Page owed Smith. The Water District appealed to the Court of Civil Appeals asserting that the actual cost of completion of the contract ($39,-234.07) was the only proper amount to be deducted from the amount it owed Page. Page and Smith went to the Court of Civil Appeals as appellees only.

In the Court of Civil Appeals Page had a counterpoint urging that the trial court had not erred in deducting the reasonable cost of completion of the deficiencies listed in the two “gig sheets” from the amount the Water District owed him. Page had no counterpoint in the Court of Civil Appeals requesting that court to adjust accounts between him and Smith if it was determined that the actual cost of completion of the work was the proper deduction to be made from the amount the Water District owed Page.

After concluding that the actual cost of completion was the proper deduction to be made from the amount the Water District owed Page, the Court of Civil Appeals refused to adjust accounts between Page and Smith for $39,234.07 since Page had not requested the Court to do so. Page assigned this as error in his motion for rehearing in the Court of Civil Appeals.

Thus, we are confronted with the issue of whether Page, having received all relief to which he was entitled in the trial court and as appellee in the Court of Civil Appeals, has waived his right to an adjustment of accounts with Smith by failing to include under a counterpoint a prayer for such relief in the event the Court should conclude, as it did, that the actual cost of completing the work ($39,234.07) was the proper deduction to be made from the amount the Water District owed Page.

Page made no complaint of the trial court’s judgment. It was only after the Court of Civil Appeals charged Page with the cost of the Bland contract, thus reducing his judgment against the Water District by $25,712.77, that Page was compelled, under penalty of waiver, to seek an adjustment of the increased charge between him and Smith. Page properly re-, quested an adjustment of accounts with Smith in his motion for rehearing in the Court of Civil Appeals, and Page should have been allowed to recover from Smith $8,389.30, the amount of overpayments made by him to Smith.

We now address ourselves to the points, of error brought to this court by the Water District.

Liquidated Damages

By the terms of the contract Page agreed' to complete or substantially complete the work on the contract within 210 working-days. The period of 210 working days began on December 30, 1955. In May of 1957 Page gave the Water District oral notice that his work on the project had been substantially completed. It is undisputed' that by May 10, 1957, all of the water lines, pumps, valves, and other equipment had' been installed, and that all the lines had been tested as called for by the contract. On May 10, 1957, the Water District took, possession of all the lines, filled them with water, and began using them to serve the-customers of the Water District.

On July 31, 1957, the 210 working days-expired, and from that date the Water-District’s engineer began to assess liquidated damages. A total of 252 days delinquency at the rate of $100 per day was compiled because of Page’s alleged failure to-substantially complete the contract. In its. counterclaim against Page and his surety, the Water District alleged that Page was indebted to it in the amount of $25,200.00 .as liquidated damages. The trial court refused to award liquidated damages, and the Court of Civil Appeals affirmed that judgment.

It is the Water District’s position that since no certificate of completion has been issued by the engineer, and since under the law in Texas where the parties to a building contract agree to submit questions which may arise thereunder to the decision of an engineer, his decision is final and conclusive; unless in making it he is guilty of fraud, misconduct or such gross mistake as would imply bad faith or failure to exercise honest judgment; and since there have been no jury findings that the engineer was guilty of fraud, misconduct, or gross mistake, then the engineer properly began to assess liquidated damages from July 31, 1957. The Water District makes the further contention that the fact that it took possession and was using the lines before the expiration of the 210 working days does not destroy the right to liquidated damages since the contract provides that the Water District may take possession and use part of the work without such possession being deemed an acceptance of the work not properly completed.

Page contends that since the Water District occupied and began using the lines for their intended purpose prior to the expiration of 210 working days the courts below have properly denied the Water District liquidated damages. We agree with Page.

In considering the issue raised by the Water District in regard to liquidated dam.ages we need not consider the question of whether the engineer was guilty of fraud, misconduct or such gross mistake as would imply bad faith or failure to exercise an .honest judgment in refusing to issue a certificate of completion for the reason that the judgment of the trial court and the •Court of Civil Appeals denying such damages may be affirmed upon the ground that where an owner occupies a building before it is completed, a provision for liquidated damages on account of delay in its completion applies only from the time the building should have been completed to the date of occupancy. Collier v. Betterton, 87 Tex. 440, 29 S.W. 467; See also: Connell Construction Company v. Phil Dor Plaza Corp., Tex.Civ.App. (1957), 302 S.W.2d 724, reversed in part on other grounds, 158 Tex. 262, 310 S.W.2d 311. This rule is applicable to a construction contract such as we have in the present case. Where the owner has taken possession and is using the object of the contract for its intended purpose before the expiration of the number of working days provided for in the contract, there is no delay for which liquidated damages may be awarded. After the date of occupancy the owner is entitled only to his actual damages. Collier v. Betterton, supra. Liquidated damages were properly denied in this case.

Since we have held that the Court of Civil Appeals properly entered a take nothing judgment against Smith in his cross action against the Water District, the Water District’s remaining points of error need not be disposed of for they are conditioned on a contrary holding.

It follows from what has been held above that the judgment of the Court of Civil Appeals wherein the Water District was allowed a recovery of the sum of $39,234.-07 to be deducted from the balance due Page on the contract thus reducing Page’s recovery from the Water District to $1,608.-99 is affirmed; the judgment denying the Water District liquidated damages is affirmed ; the judgment that Smith take nothing in his cross action against the Water District is affirmed; and the judgment denying an adjustment of accounts as between Page and Smith is reversed, and judgment is here rendered that Page recover of and from Smith the sum of $8,389.30.

All costs are adjudged against Page and Smith so far as the Water District is concerned, and all costs incurred or paid by Page are adjudged against Smith.

The judgment of the Court of Civil Appeals is affirmed in part and reversed and rendered in part.

      . “42. ABANDONMENT BY THE CONTRACTOR. In case [Page] should abandon and fail or refuse to resume work within ten (10) days after written notification from the [Water District], or the ENGINEER, or if [Paye] fails to comply with the orders of the ENGINEER, when sueh orders are consistent with this Contract, or with this Agreement, ⅜ * * then and in that case, the Surety on the Bond shall be notified * * ⅝ and directed to complete the work ⅜ ⅜ ⅞.
      “In case the SURETY should fail to commence compliance with the notice for completion hereinbefore provided for, within ten (10) days * * *, then the [Water District] may provide for completion of the work in * ⅜ * the following elective manners:
      “(a) ⅜ * ⅜
      “(b) The [Water District] under sealed bids, ⅝ * * may let the contract for the completion of the work under substantially the same terms and conditions which are provided in this contract. In case of any increase in cost to the [Water District] under the new contract, as compared to tohat would have been the cost under this contract, such increase shall he charged, to [Pape] ⅜ * [Emphasis added.)

      . City of San Antonio v. McKenzie Construction Co., 136 Tex. 315, 150 S.W.2d 989.


author: NORVELL, Justice. SMITH, Justice.

text:
    Chris MATTERN, Petitioner, v. Magadelina HERZOG et al., Respondents.
    No. A-9207.
    Supreme Court of Texas.
    April 17, 1963.
    Rehearing Denied May 22, 1963.

      W. E. Barron, Nevasota, W. S. Barron, Bryan, Joe J. Newman, Houston, for petitioner.
    A. K. Stewart, Darden, Fowler & Creighton, Conroe, Williams, Lee & Lee, Houston, for respondents.
   NORVELL, Justice.

The Court of Civil Appeals has reversed a District Court’s summary decree and held that a clause of Paragraph II of the last will and testament of Monika Mattern is invalid because it violates the rule against perpetuities and constitutes an unlawful restraint upon alienation. 359 S.W.2d 86. The clause in question purported to give Chris Mattern, a child of the testatrix, the right to purchase certain real estate from the other beneficiaries named in the will. We have reached the conclusion that this option clause is not invalid as held by the Court of Civil Appeals and we accordingly reverse that Court’s judgment and affirm that of the District Court.

The Court of Civil Appeals makes the following statement of the case:

“Paul and Monika Mattern executed the duly probated joint will whereunder Mrs. Mattern, the survivor, took their estate and the property remaining passed at her death to their children. Their daughter Marie was devised 20 acres not here involved. Then follows paragraph II which reads as follows:
“ ‘The remainder of all our real estate, wherever located or situated, which we may die seized and possessed of we give and bequeath to our beloved children, Chris Mattern, Jack J. Mat-tern, Magadeline Herzog, Paul J. Mattern, Barbara Mock, Reginia Gostslig, Johnnie Mattern, Agnes Pustka and Monika Mattern to share and share alike in the division thereof; however, this bequest is made to our said named children with the provision that our son Chris Mattern shall have the right to purchase from each of the other children their interest in said real estate for the sum of $45.00 per acre, and in making such purchase from said other children our said son Chris Mattern shall he entitled to deduct from the price of $45.00 per acre such sums of money as he may have advanced to us during our lifetimes.’ (Italics ours)
“After Mrs. Mattern’s death and the probation of the will, three of the children conveyed their interests to appellee (petitioner here). But the five appellant children, (respondents here) refusing to convey, although requested to convey by appellee, brought this suit to relieve their title of ap-pellee’s claim that he had the right under the will to purchase their interests at $45.00 per acre.”

It appears from affidavits submitted in connection with petitioner’s motion for summary judgment that Paul Mattern died in 1952 and his widow died in 1959; that since 1951, the petitioner Chris Mattern has lived with his parents or with his surviving mother until her death and contributed some $2,237.82 in the form of supplies and services to their support. Shortly after his mother’s death, the petitioner sought to exercise the option given to him in his mother’s will by claiming credit for the sums advanced for his parent’s support and offering to pay the balance up to $45.00 per acre in accordance with the testamentary clause above set out with the result above noted.

At the outset it may be noted that the intentions of Paul and Monika Mattern, the makers of the joint will, seem reasonably clear and definite, especially when viewed in the light of the surrounding circumstances above set out and concerning which there is no dispute. Mr. and Mrs. Mattern were living with one of their sons. It was anticipated that he would, from time to time, advance money for their wants and procure for them essential household needs and medical services, the exact amount of which could not be definitely ascertained at the time of the making of the will. In order to treat their children justly and equitably according to their lights, the parents placed a price upon the land, and provided that the son who had supported them could purchase the land from his-brothers and sisters and take credit for such sums as he may have advanced for their support. This plan was quite simple-in concept and it has been repeatedly said that courts in construing wills should consider the language used and in the light of the attendant circumstances determine the-intent of the testator.

The respondents concede that a will could be drawn which would make effective the objective which the makers wished to attain. However, it is stated by our Constitution that “Perpetuities and monopolies are contrary to the genius of a free government, and shall never be-allowed, * * Vernon’s Ann.St. Const, art. 1, § 26. The effect of this constitutional provision and Article 1 of Vernon’s Ann.Tex.Civ.Stats. was to adopt the English common-law rule against per-petuities. This rule is one of high public policy but in this State it is recognized that a construction which will render a contract or testamentary disposition enforceable rather than invalid is to be preferred even though the rule against perpetuities is involved. In holding that certain deeds which created trusts did not violate the rule against perpetuities, this Court, in Kelly v. Womack, 153 Tex. 371, 268 S.W.2d 903, said:

“It is a cardinal principle that the intention of the grantor shall govern. “The judicially ascertained intent of a conveyor is normally determined by the language employed in the conveyance, read as an entirety and in the light of the circumstances of its formulation.” ’ Rust v. Rust, supra. (Tex.Civ.App., 211 S.W.2d 262, approved by the Supreme Court, 147 Tex. 181, 214 S.W.2d 462). It is also the settled rule that where an instrument is equally open to two constructions, the one will be accepted which renders it valid rather than void, it being assumed that a grantor would intend to create a legal instrument rather than one which is illegal. Neely v. Brogden, supra. (Tex.Com.App., 239 S.W. 192) * * *
“We are of the opinion that even though no limitation of time was imposed upon the trustees, the intention •of the grantor would clearly indicate, and the law would imply, that they were to be given a reasonable length •of time in which to carry out their obligation. What that reasonable time would be would involve all of the facts and circumstances. Parks v. Powell, Tex.Civ.App., 56 S.W.2d 323 (Reversed on other points, 126 Tex. 338, 86 S.W.2d 725).”

Kelly v. Womack cites and follows Henderson v. Moore, 144 Tex. 398, 190 S.W.2d 800 in which the Texas rule was stated as follows:

“The rule against perpetuities renders invalid any will which attempts to create any estate or future interest which by possibility may not become vested within a life or lives in being at the time of the testator’s death and twenty-one years thereafter, and when necessary the period of gestation.”

The rule against perpetuities and the doctrine relating to restraints on alienation are of a somewhat similar nature, although they do not proceed upon identical principles. A liberal view must be taken in order to construe appellants’ (Herzog et al.) points in their brief in the Court of Civil Appeals as raising a question, relating to an unlawful restraint upon alienation. A similarly broad view must be taken of appellee’s (Mattern) motion for rehearing in the Court of Civil Appeals to reach the conclusion that a complaint was made of the Court of Civil Appeals’ holding with reference to this question. However, as the Court of Civil Appeals considered and in part based its judgment upon the doctrine, we will adopt a liberal rule of construction and consider the contentions raised by the parties relating to both the rule against perpetuities and unlawful restraints upon alienation.

First, we consider the rule against per-petuities.

Under the will, the real estate involved passed in fee simple to the nine named children of the testatrix, Monika Mattern, “to share and share alike in the division thereof.” This title, however, (as to the interest of eight of the children) was incumbered by an option under which Chris Mattern could purchase the land by paying to the other devisees the sum of $45.00 per acre, less such sum as he may have contributed to his parents’ support. The Court of Civil Appeals considered that this was an interest in land which could extend beyond the life of Chris Mattern. Of course, if the right vested in Chris Mattern did not constitute an interest in land but was purely personal to him, it would expire upon his death and no problem involving the rule against perpetuities would be encountered. There is authority for the proposition that options of the character here involved create no interest in land. See, Annotation 162 A.L.R. 581, 1. c. 584. If, on the other hand, although the option be considered as creating an interest in land in that the optionee could enforce a conveyance upon payment of the purchase price, such option would not offend against the rule provided it could reasonably be said that it was contemplated by the settlor that the option should he enforced by the optionee alone and hence during his lifetime. See, Weitzmann v. Weitzmann, 87 Ind.App. 242, 161 N.E. 385. Options created by testamentary instruments are often construed as expiring with the lifetime of the optionee. Annotation, 44 A.L.R.2d 1214. In the American Law of Property (Vol. 6, § 2456) it is said that:

“If the option is given by an individual and/or to an individual, and if the option can be construed to be exercisable only during one or both of these lives, plainly the option is not invalid under the Rule against Per-petuities.”

The primary attack of the petitioner upon the holding of the Court of Civil Appeals centers upon the argument that it reasonably appears from the nature and purpose of the will involved, the language employed therein and the surrounding circumstances thereof, that the makers of the will intended that the option to Chris Mattern should be exercised within a reasonable time after the death of the surviving maker of the will. The issue is thus squarely drawn. The Court of Civil Appeals says that the option creates a contingent interest in land of unlimited duration. The petitioner counters with the assertion that the option, if exercised at all, must be exercised within a reasonable time and that within such reasonable time he has elected to exercise his option.

The leading case involving the matter of options in connection with the rule against perpetuities is that of London and South Western Railway Company v. Gomm (1882) L.R. 20 Ch.Div. 562, decided by the English Court of Appeal. In this case, the Railway Company conveyed certain land which was no longer required by it for railway purposes to one George Powell retaining, however, an option which bound Powell, his heirs and assigns to reconvey the property to the Railway Company for the sum of £100 upon six months written notice. The Court, speaking primarily through Sir George Jessel, held that the option or covenant to reconvey was obnoxious to the rule against perpetuities With reference to the time element prescribed in the option, the Master of the Rolls, after reading the covenant, made the following remarks with reference thereto:

“Now it is unlimited in point of time, and it does not appear to me to be possible to insert a limit of time, because to put in the words, ‘within a reasonable time’, or any other words limiting the time, would be exactly contrary to the intention of the parties. It is not only unlimited in point of time but is obviously intended so to be. The railway company do not want the land now, and they do not know that they ever, will want it, but their bargain is that whenever it may be required for the works of the company the owners or owner for the time being of the land are or is to convey to the company. The very essence of the contract is that it shall be indefinite in point of time. You cannot, as in Kemp v. South Eastern Railway Company [1872, L.R., 7 Ch.App. 364], insert by intendment the limitation that the land is to be taken before the time for executing the works had expired, for in this case the time for the execution of the works had already expired. It appears to me therefore plain (and indeed it was admitted in argument by the Respondents) that the option is unlimited in point of time.” (Italics supplied)

From the report of Kemp v. South Eastern Railway Company (mentioned in Gomm) it appears that the agreement involved read as follows:

“The company shall erect and for ever maintain a passenger station upon the piece of land numbered 77 in the company’s plan, and one acre of ground shall be considered as covered by the said sum of £2000 for the site and purposes of such station; and if the company shall require more than one acre of grouñd for the site or purposes of the said station, or any additional ground for any purpose beyond that specified in the said schedule hereto, they shall pay for the same at the rate of £100 per acre.”

In construing this agreement, Lord Hatherley, the Lord Chancellor said:

“This agreement would not run for all time, and merely fixed the price instead of leaving it to be settled by a jury or by arbitration — that is all. I cannot understand why it should be thought to be a roving agreement extending over 200 acres of land, or for an indefinite period of time.
“Then reading the agreement so, I hold that the company may, within the time within which they are to finish their works, have whatever land they want at £100 per acre.”

In Rice v. Lincoln & North Western Railroad Co., 88 Neb. 307, 129 N.W. 425, a somewhat similar situation to that disclosed in Kemp was considered by the Supreme Court of Nebraska. The case was tried upon the counterclaim of the railroad company which sought and was granted a decree of specific performance ordering Rice to convey certain real property to it. The contract provided that Rice would convey a certain tract of land to the railroad company and in addition provided that:

“We (Rice) further agree that said company may proceed in the construction of said road over said land, and we will sell to the said railroad company such additional right of way as they may require at the rate of $60 dollars per acre, with the privilege of changing any water course necessary in the construction of said road, and the right to build and maintain a snow fence for the term of five months each year at any point where said snow fence may be deemed necessary within two hundred feet of either side of its right of way on said described land, beginning November 15th and ending April 15th of each succeeding year; and I agree to settle all damage to tenant on account of his leasehold: Provided, that said railroad company shall during the years 1906 and 1907 construct its said railroad from on said land to - and pay the said S. H. Rice the sum of $150.00 dollars, then this obligation shall be of force and virtue in law; but if said company shall neglect or refuse to pay the said sum within 1 month from date, then either party may have the damages for Right of Way assessed as provided by law.”

While the Supreme Court reversed the decree of the trial court upon the grounds that it would be inequitable to order specific performance, the Court considered the contention that the agreement was obnoxious to the rule against perpetuities and found that it was not. The Court said:

“The second proposition of the plaintiff as stated in the brief is as follows: ‘The said contract, assuming it to be otherwise valid, was void so far as it sought to bestow upon the railroad company the option to purchase additional lands, because it violated the rule against perpetuities.’ It appears to be conceded by the company that if the exercise of its option to purchase was not limited as to time, and the contract had by express terms been extended to the ‘heirs, executors, administrators, and assigns and the owner or owners for the time being of the lands conveyed and all persons who should and might be interested therein/ it would violate the rule against perpetuities. The company contends that it does not violate this rule for two reasons: The contract by its terms is personal to this plaintiff only; and it is limited in time to the construction of the railroad which again in express terms is limited to the two years named in the contract.
“In the view that we take of the second proposition of defendant upon this point, it is not necessary to determine whether the true construction of this contract is that the deed given pursuant thereto should contain covenants running with the land. The second proposition of defendant on this point, that the contract should be construed to limit the exercise of the option to the time of the construction of the road, we think is right. * * * The agreement is that, if the company should require ‘additional right of way * * * in the construction of said road,’ plaintiff shall convey it, and be paid therefor at $60 per acre. The exercise of the option, then, was limited to the two years in which the construction was to be completed, and the rule against perpetuities is not violated.”

We are here concerned with an option which was contained in a will having for its purpose the settlement of an estate and the distribution of the testator’s property. It has been stated generally that in options, “time is of the essence”, Lusher v. First National Bank of Fort Worth, Tex.Civ.App., 260 S.W.2d 621, ref. n. r. e., 13 Tex.Jur.2d 163, Contracts, § 38. When we examine the paragraph of the will here involved, we find that in the first part thereof, the property is left to the children of the makers of the will to “share and -share alike in the division thereof.” Then follows the option clause which gives to Chris Mattern the right to purchase from •each of the other children. In connection with this right of purchase, Chris Mattern is entitled to deduct from the stated purchase price “such sums of money as he may have advanced to us during our lifetime.” The sums of money so advanced would undoubtedly constitute claims against the estates of the makers of the will which would have to be settled within prescribed times after the death of the surviving maker of the will.

We think it can reasonably be said from the nature of the instrument, the wording employed therein and the circumstances surrounding the execution of the will, that the makers intended that the option given to Chris Mattern should be exercised within a reasonable time. We do not construe the clause as one which attempts to preserve the claim of Chris Mattern against the estate of the survivor for an indefinite time, nor as giving him, his heirs and assigns an option which would extend beyond the period of time allowed by law for the due administration of the estate of Monika Mattern and the settlement of claims against said estate. We regard the cases of Kemp v. South Eastern Railway Co. (1872, L.R., 7 Ch.App. 364 and Rice v. Lincoln & North Western Railroad Co., 88 Neb. 307, 129 N.W. 425), as supporting by analogy the conclusion we have reached.

It should also be here noted that the Kentucky case of Maddox v. Keeler, 296 Ky. 440, 177 S.W.2d 568, 162 A.L.R. 578 involved an option for repurchase which the contracting parties intended should be of indefinite duration. In this case we hold that the makers of the will did not intend to give to Chris Mattern an option to purchase of indefinite duration but rather one which had to be exercised, if at all, during a reasonable period of time bearing some relationship with the time required to administer and finally settle the Monika Mattern estate.

A contrary holding would not only be somewhat unrealistic insofar as the probable intention of the makers of the will is concerned, but undesirable from a policy standpoint. As above indicated, options are generally of limited duration and often informally stated, even though they may be of great importance from a property standpoint. When the wording of the option does not compel a construction that the parties intended that the time element should be unlimited, the court will not construe an option contract or a will provision granting an option to run for an indefinite time and thus destroy the validity of the option provision. It has been stated that the courts will go so far as to imply a reasonable time when no time limit is expressly stated. Magee v. Mercantile-Commerce Bank and Trust Company, 343 Mo. 1022, 124 S.W.2d 1121. While the case of Kelly v. Womack, above mentioned, did not deal with the time within which an option should be exercised, it did consider the time period within which trustees should exercise the powers vested in them by certain deeds. The rule against per-petuities was involved and this Court directly held that the law would imply that the trustees “were to be given a reasonable time in which to carry out their obligations.” We regard Kelly v. Womack as being in point upon the question before us. Clause II of the will is not obnoxious to the rule against perpetuities.

We think what has been said also effectively answers the assertion that the option provision is unenforceable as a restraint upon alienation. The Restatement of Property classifies restraints on alienation into three classes, namely, (1)' disabling restraints, (2) promissory restraints and (3) forfeiture restraints. Restatement of the Law of Property, Vol. 4r “Social Restrictions Imposed on the Creation of Property Interests, § 404 and illustrations given thereunder. 6 American Law of Property §§ 26.6 et seq. The Texas authorities cited by the Court of Civil Appeals involve disabling restraints and support the general rule that such restraints are invalid. However, in the case of an option, a direct disabling restraint is-not involved. There is no direction to the devisee ordering him not to convey, but rather the option operates by indirection in that the devisee’s conveyance may be defeated through the exercise of the option. Options attached to conveyances or devises-of land whereby one party receives the property subject to the right of another to-purchase the same do not fit into the usual classifications of restraints upon alienation. There are numerous cases in which such options have been upheld as is evidenced by the cases heretofore mentioned. Generally the courts have tested the legality of these options by the rule against perpetuities and primarily the problem is one relating to the time of the vesting of future estates, but we do no wish to be understood as intimating that any option is valid if the time for the exercise thereof is within the period prescribed by the rule against perpetuities. See, Kershner v. Hurlburt, Mo., 277 S.W.2d 619. It has been suggested that the rule against perpetuities is ill adapted to fixing a limitation of reasonableness for options insofar as commercial transactions are concerned and that possibly an approach through the doctrines as to restraints on alienation would be more promising. 6 American Law of Property 143, § 24.56. Cf. Annotation 162 A.L.R. 581, l.c. 590. However, if the restraint on alienation doctrine is to be employed to attain socially desired results, the element of the reasonableness of the time limit of the option must be considered. It will not do to mechanically apply the rule applicable to disabling restraints and thus inhibit the employment of desirable contractual and testamentary provisions and unnecessarily circumscribe the freedom of contract and the power of testamentary disposition. Before the option may be stricken it must appear that it bears some relationship to the evil which the rules governing undesirable restraints are designed to prevent. The present option involved, limited as it is to a reasonable period of time, is not a socially undesirable device. We hold that it is valid and enforceable.

As above indicated, the judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

GRIFFIN and SMITH, JJ., dissenting.

SMITH, Justice.

I respectfully dissent.

The provision in the will giving to petitioner time unlimited to purchase respondents’ fee title violates the rule against perpetuities and also is a restraint upon alienation.

Petitioner seeks to apply “reasonableness” in order to escape the rule against perpetuities.

To determine if a will violates the perpetuity rule the test is whether at the very instant of the testator’s death the right or interest devised, by possibility, might not vest within a life in being plus 21 years and the period of gestation.

Petitioner’s contention is that he had a reasonable time after the testatrix died to purchase the land and to deduct from the purchase price the advancements made by him to the testatrix and her husband.

If by possibility petitioner had died the day after the testatrix, the indebtedness due to him by the testatrix would have survived his death for the benefit of his heirs and devisees. The right to acquire a future interest that she attempted to give him was not a personal right, dying with him, but upon his death it would have vested in his heirs or devisees who likewise could have deducted his advancements from the purchase price. By possibility these devisees or heirs could have died without attempting to exercise any right of purchase.

Petitioner makes the point that a will is to be liberally construed to give effect' to the intention of the testator. This is the usual rule, of course. But a construed or an expressed intention falls when the will does not by necessity vest the future interest within the time not condemned by the rule against perpetuities. If by possibility the estate might not vest within that period, the intention of the testator is immaterial and is rejected by Article 1, Section 26, of the Constitution of the State. When it appears that the will provides for the possible vesting of an estate beyond the perpetuity period, it is condemned by fundamental law without regard to the intention of the testator or the devisee. And a “reasonable time” may never be read into a will that by possibility would permit a future estate to vest beyond the perpetuity period. Once it is determined that by possibility the future interest might not vest within the perpetuity period, inquiry ceases, intention becomes unimportant, and reasonableness affords no relief. Therefore, the rule in Kelly v. Womack, 153 Tex. 371, 268 S.W.2d 903, relied upon by the Court, has no application.

If the provision be treated as an option, not a gift or bequest, to petitioner, such option is likewise condemned and is not aided by reasonableness or by intention.

In Gray’s “Rule Against Perpetuities”, Fourth Edition, it is said at page 362:

“Where, however, a contract raises an equitable right in property which the obligee can enforce in chancery by a decree for specific performance, such equitable right is subject to the Rule against Perpetuities. This was decided by the Court of Appeal in London & South Western R. Co. v. Gomm, where an option to purchase land, unlimited as to time, was held void; overruling Birmingham Canal Co. v. Cartwright.”

In 162 A.L.R., at page 581:

“According to the weight of authority in jurisdictions applying the common-law rule against perpetuities, an option to purchase real property, unlimited as to the time for its exercise or extending beyond the period limited by the rule against perpetuities, violates such rule and is invalid.”

The Court of Civil Appeals on pages 6 and 7 quoted with approval from Maddox v. Keeler, 296 Ky. 440, 177 S.W.2d 568, 162 A.L.R. 578. That this opinion is in keeping with the great weight of authority is apparent from the cases cited in the decision and in the annotations in 162 A.L.R. 581, et seq.

No one doubts the right of a person to contract or to devise an option not viola-tive of the rule against perpetuities. Options are property and pass by contract, devise or descent. 73 C.J.S. Property § 2, p. 151; Vernon’s Texas Probate Code, Vol. 17A, Sec. 58, p. 267. The material thing or res itself is property, and also the right to acquire it, to use it, or to dispose of it, is property. Property “[i]n its ordinary legal signification * * * ‘extends to every species of valuable right and interest * * *.’ ” Womack v. Womack, 141 Tex. 299, 172 S.W.2d 307; Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513, 19 A.L.R. 1387; Department of Financial Institutions v. General Finance, 227 Ind. 373, 86 N.E.2d 444, 10 A.L.R.2d 436.

Whether an option to purchase is a valid property right, or an invalid claim violating the rule against perpetuities, is to be determined as of the date of the testator’s death. Gray’s Perpetuities, Fourth Edition, p. 235, and numerous decisions cited; 32 Tex.Jur. 834; Anderson v. Menefee, Tex.Civ.App., 174 S.W. 904; Neely v. Brogden, Tex.Com.App., 239 S.W. 192.

On the day when the testator dies by possibility petitioner might not have been able to purchase, he might not have desired to purchase, or he might have died without purchasing. By possibility, his heirs or devisees or successors might not desire to or could not purchase, or would die without purchasing. No one was compelled to purchase within the perpetuity period. As was said in Maddox v. Keeler, supra:

“Assuming, without deciding, that the option retained in the deed created a future equitable interest in the land, susceptible of inheritance, it is obvious that such interest is a limitation upon the power of absolute alienation, so long as it remains in existence. Gray’s The Rule Against Perpetuities, Fourth Edition, p. 355, Sec. 323. Such interest, therefore, being the subject of inheritance, would remain a limitation upon the power of alienation until the owner of the property concluded to sell or convey the tract to another. Thus, the right to exercise the option could pass from generation to generation, until finally it might vest in one coming into being after the expiration of twenty-one years and ten months after a life or lives in being at the time of the creation of the estate. * * * ”

The Court of Civil Appeals correctly-held that the provision of the will under consideration violates the rule against per-petuities and constitutes an unlawful restraint upon alienation. The judgment of the Court of Civil Appeals should be affirmed.

GRIFFIN, J., joins in this dissent.

      . For a discussion of a constructional preference for validity, see, 5 Powell on Real Property, § 777. The statement of Gray that “every will or settlement is to be construed as if the Rule did not exist, and then to the provisions so construed the rule is to be remorselessly applied.” Gray, “The Rule Against Perpetuities” (4th Ed.) § 629, probably stems from Baron Parke’s opinion in Dungannon v. Smith, 12 Cl. & F. 546, 8 Eng.Rep. 1523. The rationale of Kelly v. Womack is more consistent with the philosophy of Powell than with that expressed by Gray.

      . See also, Barton v. Thaw, 246 Pa. 348, 92 A. 312, Ann.Cas.1916D, 570; Maddox v. Keeler, 296 Ky. 440, 177 S.W.2d 568, 162 A.L.R. 578, Annotation, “Option to purchase as violation of rule against per-petuities or rule forbidding restraints on alienation” 162 A.L.R. 578; American Law Institute’s Restatement of the Law of Property, §§ 393, 394.

      . For a critique of the rule against per-petuities as applied to options, see, “The Common Law Rule against Perpetuities” by Professor W. Barton Leach and Mr. Owen Tudor in American Law of Property, Vol. 6, § 24.56.

      . § 404 Definitions.
      (1)A restraint on alienation, as that phrase is used in this Restatement, is an attempt by an otherwise effective conveyance or contract to cause a later conveyance.
      (a) to be void; or
      (b) to impose contractual liability on the one who makes the later conveyance when such liability results from a breach of an agreement not to convey; or
      (e) to terminate or subject to termination all or part of the property interest conveyed.
      (2) If a restraint on alienation is of the type described in Subsection (1), Clause (a), it is a disabling restraint.
      (3) If a restraint on alienation is of the-type described in Subsection (1), Clause (b), it is a promissory restraint.
      (4) If a restraint on alienation is of the type described in Subsection (1), Clause (c), it is a forfeiture restraint.