William R. Day

“ It is true that undeveloped mining property is often sold under option agreements. See 3 Lindley on Mines, § 859. But there is nothing to show that this contract was dependent upon the development of the mining property. The written agreement contains a positive undertaking to sell, upon the one part, and, upon the other part, to buy shares of the mining stock. Whether the shares sold constituted all the shares of the company does not appear. ”

“ The right of Hastings and Lange to recover was based upon the theory that the contract was an option terminable by the act of the buyer in failing to make the payment on the contract, which payment, it is found, would not have been made had the message been promptly delivered. An option is a privilege given by the owner of property to another to buy the property at his election. It secures the privilege to buy and is not of itself a purchase. The owner does not sell his property; he gives to another the right to buy at his election. ”

“ Hastings and Lange paid to Pitt and Campbell the initial sum of $7,500, and Pitt and Campbell deposited in escrow with the Lyon County Bank certificates of stock representing 625,000 shares of the stock of the mining company properly indorsed, and the bank received said certificates in escrow and held the same in accordance with the contract. After the execution of the contract Hastings and Lange arranged with the bank to treat drafts that they might send it in partial payment as gold coin, and to pay the amount of such drafts in gold coin to Pitt and Campbell under said contract ”