Berryman v. Kmoch

221 Kan. 304, 559 P.2d 790 (1977)

Quick Summary

Berryman (plaintiff), the owner of a tract of land, and Kmoch (defendant), a real estate broker, entered into an option contract. The contract allowed Kmoch to purchase the land for $10 as consideration, but he never paid this amount.

Berryman later sold the land to someone else without Kmoch’s knowledge. Later, Kmoch attempted to exercise the option, but discovered that the land had already been sold.

Berryman sought to nullify the option contract, arguing that it lacked consideration. The court agreed and ruled that an option contract without consideration can be withdrawn before acceptance.

Facts of the Case

Berryman (plaintiff) owned a tract of land and entered into an option contract with Kmoch (defendant), a real estate broker. Under the option contract, Kmoch had the right to purchase the land for $10 as consideration, but he did not pay this amount.

In July, Berryman contacted Kmoch and asked to be released from the option, but no agreement was reached between them. Shortly after that, Berryman sold the land to another buyer.

In August, Kmoch decided to exercise the option and went to the Federal Land Bank representative to make arrangements for purchasing the land. However, he was informed that the property had already been sold. Kmoch then recorded the option and sent a letter to Berryman in October attempting to exercise it.

Berryman filed a declaratory judgment action seeking to have the option declared null and void.

Procedural Posture and History

  1. Wade Berryman filed a declaratory judgment action seeking nullification of the option contract.
  2. Both parties filed motions for summary judgment in the trial court.
  3. The trial court granted summary judgment in favor of Berryman.
  4. Kmoch appealed the decision of the trial court to the Supreme Court.

I.R.A.C. Format


Whether an option contract can be withdrawn if it lacks consideration.

Rule of Law

If an option contract lacks consideration, it can be withdrawn at any time before acceptance because it is merely an offer to sell.

Reasoning and Analysis

Kmoch, as a real estate agent who drafted the contract himself, should have known that the option contract was not equivalent to a sales contract. The option was a continuing offer, revocable as long as the consideration was not paid.

Moreover, Kmoch’s reliance on the promise could have been more reasonable, even if it was detrimental to him. The property owner retained the right to revoke the option and did so by expressing his intent to do so before any acceptance by Kmoch.


Since the option contract lacked consideration, it was merely an offer to sell and could be withdrawn before acceptance. Therefore, the trial court’s grant of summary judgment in favor of Berryman was proper.

Key Takeaways

  1. An option contract must have consideration to be valid and binding.
  2. A lack of consideration allows the option to be withdrawn before acceptance.

Relevant FAQs of this case

What is consideration's role in the validity of an option contract?

Consideration in an option contract demonstrates a mutual exchange. For instance, if you pay me $100 for the exclusive right to buy my car for $10,000 within 30 days, your payment serves as consideration, making the option contract valid.

Under what circumstances can a court nullify an option contract in a legal dispute?

A court can declare an option contract null and void if it lacks consideration or if the offeror properly revokes it before the offeree accepts it.

  • For example: If you promise to buy my car for $10,000 but never pay me anything, the court might declare the option contract null and void.


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