109 Misc. 611 | N.Y. Sup. Ct. | 1919
This is an action for the specific performance of an alleged contract made by the defendant to convey to the plaintiffs certain water-front property situated on Staten Island, Richmond county.
The complaint contains two causes of action: First, that on September 8, 1919, the plaintiffs and the defendant entered into a contract, in writing, whereby the defendant agreed to convey said premises to the plaintiffs for the sum of $69,000, free from all encumbrances; and second, that on March 7, 1919, the defendant, by a certain instrument in writing, did give to the plaintiffs, for the sum of $500, an option for the purchase of said property for the sum of $70,000; that on the 2d day of July, 1919, the defendant, in consideration of the payment of a further sum of $500, gave the plaintiffs an extension of said option, and that on September 8, 1919, while said extended option was in full force and effect, the plaintiffs notified the defendant, in writing, that they accepted the same, and that they agreed to purchase the said premises upon the terms and conditions mentioned in said option, and that the defendant has refused to convey the said premises.
The defendant substantially denies all the material allegations of the complaint. He admits, however, the giving of the option and the extension thereof for the sums of money mentioned therein, and also admits
The determination of this controversy depends upon the legal effect to be given to the option of March 7, 1919, and the alleged acceptance thereof as evidenced by the plaintiffs’ letter of September 8, 1919.
The plaintiffs contend that such letter was effective as an election on their part to exercise the option and that thereupon a valid contract was created.
The defendant contends that the letter was ineffective as an acceptance of the option for the reason, among others, that it was not also accompanied by payment or tender of the purchase price and a demand for a deed. His claim, therefore, is, in effect, that not only must the option have been accepted but the resulting contract must have been performed within the time prescribed as the life of the option.
In eases of this character confusion is frequently caused by failure to differentiate between acts essential to the creation of a contract, and acts relating solely to the performance thereof when created. The closing of title, payment of the purchase price and delivery of the instruments of conveyance are acts of performance, relating not to the creation but to the execution of a contract. The instrument of March 7, 1919, was not a contract; it was an offer or option merely, and binding upon the defendant alone. But it possessed potentialities. Upon an unequivocal acceptance of the terms thereof by the plaintiffs, the option as such would cease to exist and in its place would spring into existence a valid contract, conferring mutually enforceable rights and obligations upon the parties thereto. In the present case time is made of the essence of the option by express provision. But nowhere, by express provision, is performance of the contract to be born of the option, to spring into exist
In my opinion, therefore, the plaintiffs are not pre
The remaining and decisive question, however, relates to the sufficiency of the letter of September 8, 1919, as an acceptance of the option.
Briefly summarized, the option conferred upon the plaintiffs the right to purchase the said property for the sum of $70,000, the deed to be of the character therein specified, and the title to be free from defects. The word “ defects ” as used in the option must, in my opinion, be held to embrace only such valid and reasonable objections as would affect the marketability of the title.
A plain and unequivocal acceptance of the option, in the terms thereof, without qualification, reservation or exception, would have resulted in a valid contract conferring mutual rights and obligations upon the plaintiffs and the defendant. But I do not think the letter of September 8,1919, answers this legal requirement. The last paragraph of the acceptance reads as follows: “ We are placing our order for the searching of title and will pass title upon receiving satisfactory report from the Title Company relative to the same.”
This paragraph, it seems to me, amounts to a condition or qualification, inseparably connected with the preceding portion of the letter, the efficacy of which as an unqualified acceptance it entirely destroys. The clear import of the word “ satisfactory ” in this connection is that such report must be satisfactory to the plaintiffs. No standard or guide is prescribed to measure their satisfaction or dissatisfaction with the
I am of the opinion that the last paragraph of the letter of September 8, 1919, destroys its efficacy as an acceptance of the proposal contained in the option of March 7, 1919, and that no contract, therefore, ever resulted. I, therefore, dismiss the complaint and direct a judgment in favor of the defendant.
Ordered accordingly.