Cox Corp. v. Dugger , 583 P.2d 96 ( 1978 )

ELLETT, Chief Justice:

Cox Corporation sued Jerry Dugger for damages because of a claimed breach of an oral contract to lend $50,000. The case was tried to the court which rendered judgment in favor of Cox for $50,000, the total amount of money promised to be loaned.

Cox Corporation claims that it needed $50,000 to exercise an option to purchase realty and by reason of the failure of Dug-ger to make the funds available, it lost the opportunity to secure valuable property at a bargain. The damages, if allowable, would be the difference between the reasonable value of the property and the amount of money required to be paid by the option contract. It would not be the $50,000 promised by Dugger.

It appears that Cox Corporation has no basis for recovery in this case. On the 12th day of December,' 1970, Paul J. Cox, a single man, entered into an agreement with one McArthur and wife whereby land owned by Paul J. Cox was conveyed to the McArthurs with an option given back to him to repurchase the property for the sum of $44,604 cash within 18 months from date, less pro rata credit for interest for any unused portion of the 18 months.

The plaintiff herein is the Cox Corporation and not Paul J. Cox. It filed its complaint on September 1, 1972, against the defendant because he did not furnish the corporation money with which to exercise the option above mentioned. The option expired 18 months after date, to wit: on June 12, 1972, and thereafter the option was valueless.

On March 2, 1977, Paul J. Cox assigned his long past-due option to the Cox Corporation, the plaintiff herein. By that assignment he gave nothing to the corporation. In the assignment Paul J. Cox and Cox Corporation agreed with each other and assert as a fact that the option was given to Paul J. Cox for and on behalf of Cox Corporation; however, the warranty deed and supporting agreement were signed by Paul J. Cox in his individual capacity and not on behalf of Cox Corporation. The option agreement states that Cox is the owner of the described property, not Cox Corporation as the later assignment purported to claim. Paul J. Cox, the holder of that option, was the only one who could exercise it unless and until it was assigned; but at the time of assignment in 1977, the option had expired and was of no value to the assignee.

Cox Corporation may have been without money, but it is neither claimed nor shown that Paul J. Cox was unable to exercise the option; and for that reason the plaintiff is not entitled to recover anything for any breach of defendant’s promise to lend money to Cox Corporation, which corporation had no rights under the option agreement until several years after the option had expired.

The dissent says “the evidence clearly supports the trial court’s conclusion that Paul Cox and Cox Corporation were one and the same, . . . ”. The court never made any such conclusion, and there is no claim made in either the pleadings or in the briefs filed on appeal to that effect.

The judgment is reversed and costs are awarded to the appellant.

CROCKETT and HALL, JJ., concur.