Gibbs v. Morgan , 101 Utah 66 ( 1941 )

I concur. The principles set out in Kelsey v. Crowther,7 Utah 519, 27 P. 695, Id., 162 U.S. 404, 16 S. Ct. 808,40 L. Ed. 1017, control. The case of Thomas v. Johnson, 55 Utah 424,186 P. 437, is not in point. In that case defendant Johnson definitely stated that he would not perform under the option he had given. That assertion amounted to a repudiation of the option by the optionor and dispensed with any necessity of such action as would show the decision to exercise it. If Gibbs, in this case, before the 90 days had elapsed, had stated to the optionors that he would exercise his option, he would be in the same position as Thomas in Thomas v. Johnson, supra. He could have stated that he would exercise the option but insisted on obtaining the abstract of title before tendering the money and taking the deed. The failure to furnish an abstract within the 90 day period is not equivalent to a refusal to perform nor did it toll the 90 day period nor dispense with the requirement that Gibbs convert the option (offer) into a contract by exercising the option within the 90-day period. It is in that respect that plaintiff's contention fails. As stated in the Kelsey case, there may be a liability on the part of the Morgans or their estates for failure to comply with the conditions of the option. As to that we need not decide.