210 A.D. 735 | N.Y. App. Div. | 1924
Plaintiff was in possession of certain property of defendants under a three-year lease expiring April 30, 1923, and containing an option to purchase at any time during its term for the sum of $8,750.
It is claimed by the defendants that the plaintiff waived the option provision or is estopped from asserting it. The plaintiff is trying to enforce it in an action for specific performance. The trial court dismissed the complaint. There is conflict of testimony as to just what took.place in the conversations between the plaintiff
“ I, Floyd Crocker, hereby agree to take one-third the amount of money over $8750 if property 194-196 Hudson Avenue, Albany, N. Y. should be sold for $14,000 or over. Said property belongs to F. G. Page and W. C. Martin estate to which goes the remaining two-thirds.
[Signed] F. L. CROCKER.”
It is the defendants’ contention that these conversations and this writing waived the right of the plaintiff to exercise his option and constituted an estoppel. It is conceded that when the defendants sent some prospective purchasers to look at the property, the plaintiff told them that he had an option which he proposed to exercise, whereupon they left and nothing further was done. The defendants claim and the trial court has found that the plaintiff’s conduct prevented a sale. There are a number of legal questions involved. Is such an option specifically enforcible? This point is raised but is not discussed to a great extent on the briefs. The law of this State has been confusing owing to the cases of Wadick v. Mace (191 N. Y. 1) and Levin v. Dietz (194 id. 376). In most jurisdictions such options are enforcible and on theory they should be, and while the Court of Appeals has never directly passed on this point and the cases above mentioned look in the other direction, they have been distinguished and it is now established that such an option is enforcible. It has been specifically held so in Carney v. Pendleton (139 App. Div. 152, 2d Dept.), the reasoning in which is approved in Bullock v. Cutting (155 id. 825, 3d Dept.). These cases have recently been followed in Leonard v. Schnaier (119 Misc. 200). The case at bar falls within the distinctions raised in support of the enforcement of the option clause. (1) It is contained in a written lease; (2) it has a consideration in fact as well as presumed from the fact of the lease being under seal; (3) the option has been accepted and its enforcement demanded. (See, also, Dittenfass v. Horsley, 177 App. Div. 143, 147; H. & H. Corporation v. Broad Holding Corporation, 204 id. 569, 572; Epstein v. Gluckin, 233 N. Y. 490, 493; Mutual Life Ins. Co. v. Stephens, 214 id. 488, 495.)
The defendants are inconsistent in claiming that the plaintiff had waived the option in the conversations during the winter of 1923 and then setting up the agreement signed in March. That
In other words, it was an unaccepted offer on his part. Of course it did not arise in exactly this way but that is what it amounts to as will be seen by reading the two cases above referred to. There was an estoppel in the Imperator Realty Case (supra) but there is none here because the plaintiff has made no representations upon which the defendants have acted to their detriment. In New York Rubber Co. v. Rothery (107 N. Y. 310) an estoppel is defined as follows: “ To constitute it the person sought to be estopped must do some act or make some admission with an intention of influencing the conduct of another, or that he had reason to believe would influence his conduct, and which act or admission is inconsistent with the claim he proposes now to make. The other party, too, must have acted upon the strength of such admission or conduct.”
There was no consideration for the agreement moving from
To summarize: An option is enforcible; there was no novation to replace the option as it merely amounted to an accord without a satisfaction; there was no waiver and there was no consideration for the same; there was no estoppel as there was lacking the element of having acted to the detriment of the party, in reliance on the other party’s representation.
The defendants cite several cases showing that a contract may be abandoned by both parties but that question is not here presented. This was a modification if anything, not an abandonment. The defendants cite Davis v. Willis (57 Hun, 200). There was a complete abandonment in that case, an estoppel, or as stated in one case, “ an accord and satisfaction.”
The judgment should be reversed on the law and facts, and judgment directed for .the plaintiff, with costs.
All concur.
Judgment and order reversed on the law and facts, and judgment directed for the plaintiff, with costs. The court disapproves findings of fact numbered 14, 15 and 16, and makes the following additional findings, to wit: The proposed findings of fact submitted by the plaintiff to the trial court as they appear in the printed record, beginning at folio 81, which findings of fact are numbered 1 to 14 inclusive. The court also makes the following additional findings: That the plaintiff is entitled to judgment against the defendants; that upon the payment of the purchase price agreed upon in the option contained within the lease in question the defendants shall specifically perform all the conditions on their part contained within said lease and option, the plaintiff having demanded performance thereof after a due and legal tender on his part.