It appears that the writing which the plaintiff seeks to enforce is not an option but rather an unperformed and unenforceable agreement to enter into an option agreement. See Blair v. Cifrino, 355 Mass. 706 , 709-710 (1969); Lucey v. Hero Intl. Corp. 361 Mass. 569 , 573-575 (1972). But even if we were to assume that it was an option and that consideration was given for it, the plaintiff failed to exercise its rights (if any) "within the period of this agreement," as required by the writing.
In this wrongful death action arising out of a 1968 motor vehicle accident the jury returned a verdict for the plaintiff in the sum of $8,750. The sole issue raised by the plaintiff's bill of exceptions concerns certain portions of the judge's instructions to the jury on the standard of the defendant's "culpability" under G. L. c. 229, Section 2, as amended through St. 1967, c. 666, Section 1. Portions of the charge to which exception was taken could have been understood by the jury as requiring a finding of willful misconduct by the defendant in order to assess the $50,000 maximum figure permitted under the statute (St. 1965, c. 683, Section 1). In that respect the instructions were erroneous. See Toczko v. Armentano, 341 Mass. 474 , 481-482 (1960). However, the jury's verdict demonstrated that they found only a minor degree of culpability, and no error is shown in (nor was any exception taken to) the judge's charge in any respect other than the degree of culpability necessary for the maximum
recovery. The charge was not exemplary, but on the view of the case obviously taken by the jury, any error in emphasis was harmless.