102 N.Y.S. 1098 | N.Y. App. Div. | 1907
This is an appeal from a judgment dismissing the complaint in an action for specific performance. In consideration of this dispose tion we must remember that such relief is “ largely in the discretion of the equity courts ” (Dunckel v. Dunckel, 141 N. Y. 434), and that in Stokes v. Stokes (148 id. 716) the following rule was quoted and approved : “ A contract must possess certain elements in order that a court of equity may exercise jurisdiction to compel its performance. ‘ It must be upon a valuable consideration. It must be reasonably certain as to its subject-matter, its stipulations, its purposes, its parties, and the circumstances under which it was made. It must be, in general, mutual.in its obligations and its remedy.’ (3 Pomeroy’s Eq. Jur., sec. 1405.) ”
The plaintiff declares upon an agreement to convey lands in the county of Queens, possessed by the defendants Mrs. Newell and Miss Pomeroy, who were his aunts. At the time of the alleged agreement the plaintiff was in this country and the said defendants were in France. The husband of Mrs. Newell, George B. Newell, Esq., who was the agent of these defendants, .was also in France, and the dealings between the plaintiff and Mr. Newell were by telegraph and by post. The property had been in the family for years and was well known by all of the parties. It had been the subject of correspondence between them for some time. Mr. Newell had put the property in charge of the law firm of Blackwell Brothers of New York city, who were authorized to sell it and who were continuously active to make a sale that would be acceptable to their clients. These facts were familiar to the plaintiff.
It appears that the Messrs. Blackwell made a. sale of the lands to a third party, which the defendants in recognition of the Messrs. Blackwell’s authority in the premises felt bound to confirm and did
The issue as to an agreement was finally defined as to .the force and effect of the expression, “ Have accepted option,” the plaintiff insisting that thereby he agreed to purchase the property and the defendants contending that thereby the plaintiff but agreed to establish, an option between the parties whereby if he offered the' stipulated price within thirty days he would purchase the property.. The learned Special Term sustained the defendants, and I am of opinion that its judgment should be affirmed. The determination of the intention is not dependent on the question whether the language used was futile or effective; by this I mean whether the - plaintiff thereby did or did not secure an option. If he sought, to secure an option and did not, we. should not, therefore,, hold that lie he did not intend to secure it. The agreement for an option and the option are two different things (Ide v. Leiser, 10 Mont. 5; Black v. Maddox, 104 Ga. 157; 21 Am. & Eng. Ency. of Law ;[2d ed.], 924 and 925), and. the mere assent to an offer of an option is not a purchase qnder the option. (Chicago & G. E. R. Co. v. Dane, 43 N. Y. 240.) Otherwise acceptance of the offer of an option would destroy the option by merging it in the purchase. In this case, the plaintiff, in order to maintain his legal right, was. forced
The words “ Have accepted option ” have not received a judicial definition from the Court of Appeals so as to warrant the assumption that the parties had a settled definition in mind. (Slocovich v. Orient Mut. Ins. Co., 108 N. Y. 56.) The industry of the learned counsel for the appellant has collected instances of the use of this expression, in judicial opinions and in legal head notes, to describe past acts in closing the option. It may be conceded that such uses were accurate, but on the other hand instance is not wanting of a use of the same expression in the sense contended for by the defendants in this case. In Chicago & G. E. R. Co. v. Dane (supra), Grover, J., for the court, writes: “.Upon the receipt of .the defendants’ offer to transport not to exceed 6,000 tons upon the terms specified, it merely accepted such offer and agreed to be bound by its terms. This amounted to nothing more than the acceptance of an option by the plaintiff for the transportation of such quantity of iron by the defendants as it chose; and had there been a con-' sideration given to the defendants for such option the defendants' would have been bound to transport for the plaintiff such iron as it required within the time and quantity specified, the plaintiff having its election not to require the transportation of any.” We are not limited by legal definition or by rigid meaning, but the question may be answered in consideration of the meaning of the words, in the light of surrounding circumstances, of the purpose in mind and of the end sought. (Maloney v. Iroquois Brewing Co., 173 N. Y. 303; Gillet v. Bank of America, 160 id. 549.)
The parties had failed to make any agreement for immediate . purchase, and they were apart as to the purchase price. The defend.
Specific performance is not decreed unless there be mutuality. Would a court of equity hold the plaintiff upon such language under
The question is, what was agreed upon between tbe parties before the sale by the Blackwells to a third party ? The words and acts of the plaintiff subsequent to the notification which he received from Blackwell cannot be taken as throwing light upon the intent and purpose of the language “ Have accepted option,” without Carrying in mind that such words were written and such acts were done after the plaintiff had thus been notified and perhaps understood that any theory of 'an “ option ” could not avail him. The learned counsel for the appellant lays stress on the fact that Ins letter of February fourteenth to the Blackwells is strong indication of-intent and purpose. But the letter is ambiguous and consistent with the plaintiff’s supposition that he had secured an option. He wrote : “ I take pleasure in informing you that I have acquired the interests of my aunts.” This was not the'natural expression of one who had agreed to buy the property owned by his aunts. He would have said outright, I have agreed to purchase, or I have bought the property, or I have purchased the property. The plaintiff reveals himself as somewhat disingenuous. When the question came as to who should take the property, he telegraphed Mr. Newell on March second: “Hnder heavy obligations; am compelled to hold you to contract,” and yet under cross-examination he admits there were “ no specific obligations; * *. * I did not refer to pecuniary obligations of any kind; * * * it was a moral obligation.” It .amounted, he ádmits, to no more than his intention. ■ The plaintiff’s letter to Mr. Newell of February twentieth is significant: “I am writing to inform you that I am now in position to purchasez My reason-for asking a thirty days’ option was to enable me to go fully into the matter of taxes, assessments, arrears and interest which acted as a lien against the property, and I did not feel disposed to assume greater responsibilities in this matter than I could in justice to myself and. family undertake.” When asked upon the witness stand, “Tour idea in asking an option was to find out first how much the taxes and liens were before you undertook any responsibility, is that so ? ” the plaintiff replied, “ I wanted to know how much I had to’pay for the property, of course," as near as I could find out, Q. And until you discovered that, fact, yoti
I advise affirmance, with costs.
Hooker, Gaynor, High and Miller, JJ., concurred.
Judgment affirmed, with costs.