# Fullington v. M. Penn Phillips Co. > Oregon Supreme Court · September 10, 1964 · 238 Or. 321 URL: https://www.frixlaw.com/law-library/cases/9794912 ## Case - **Full name:** Fullington v. M. Penn Phillips Company - **Court:** Oregon Supreme Court - **Decided:** September 10, 1964 - **Citations:** 238 Or. 321; 395 P.2d 124; 12 A.L.R. 3d 1121; 1964 Ore. LEXIS 438 - **Precedential status:** Published - **Opinion:** Dissent by Goodwin - **Judges:** McAllister, Rossman, Perry, Sloan, O'Connell, Goodwin, Denecke - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9794912 ## Opinion text GOODWIN, J., dissenting. Although conceding the speculative nature of the damages sought by the option holder, the majority holds that the speculative nature of the damages is insufficient reason to deny them. There are several reasons why I cannot agree. The majority assumes that the option holder has been deprived of the right to wait until the end of the option period to make up his mind whether or not to exercise the option. In the case at bar, this assumption is unwarranted. If all of the plaintiff’s evidence is credible, the lessor-optionor may have committed an anticipatory *327 breach of the lease agreement. Although they are not sought in this action, damages for the breach of the lease might be available. It does not follow, however, that a breach of the lease would automatically terminate the option. Mathews State Co. v. New Empire Slate Co., 122 F 972 (CC ND NY 1903); Holmes v. Harris, 33 NJ Super 395, 403, 110 A2d 329, 334 (1954); Bado Realty Co. v. Oetjen, 5 Misc2d 914, 161 NYS2d 780 (Sup Ct 1957); 51 CJS 647, Landlord and Tenant § 87. See also cases noted in Annotation, 10 ALR2d 884, 894 (1950). This court could, and I believe that it should, hold that the option continues to exist, and that the plaintiff has been, and still is, entitled to exercise it if he so desires (assuming, of course, that he has not breached the agreement). In Gwaltney v. Pioneer Trust Company, 184 Or 459 , 199 P2d 250 (1948), we held that when a lease was terminated by the lessor because of a default by the lessee the option died with the lease. But it does not follow that when the lessor terminates, or attempts to terminate, the lease wrongfully, the option should be deemed terminated also. The more equitable rule would be to treat the interest created by the option as a separate interest, and to preserve it according to its terms, at least until it appeared that the lessee had abandoned it. See Thompson v. Coe, 96 Conn 644, 115 A 219, 17 ALR 1233 (1921). The option should be held open, at the lessee’s request, pending the option period. 51 CJS 635, Landlord and Tenant § 81. This is all the optionee bargained for. He did not buy the right to sue for damages in the absence of any showing that he has suffered damage. The option can be enforced in equity, or, if it eventually turns out that specific perform *328 anee is impossible, damages can be allowed for nonperformance. Only after the plaintiff has elected to exercise his option can he be heard to say that he has been damaged. Until such time as he elects to exercise the option, he has suffered no damage. (The case of Boyd v. DeLancey, 17 App Div 567 , 45 NYS 693 (1897), discussed the problem of damages and awarded the purchaser nominal damages after an election to purchase.) This is not a case in which the lessor has put it beyond his power to perform. There is nothing in the record to show that the lessor will not be able to honor the option when and if the plaintiff elects to exercise it. Even if this were a case in which the optionor had seemingly put it beyond his power to perform, I believe the preferable rule would require the plaintiff to allege that he had elected to exercise the option and had made demand upon the defendant. I would affirm the judgment. Perry, J., concurs in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9794912. Public record. Not legal advice.