HEAD, J.
The writings— the foundation of the present action — appear to us to be certain to every intent, excluding all ambiguity or doubt as to their import and meaning. The instrument of Janruary 8th, 1894, assuming, as it recites,'that the promise rested upon a valuable consideration, bound the plaintiff to sell, transfer and deliver to the defendant, at the lat*428ter’s option, at any time within three months from its date, forty-nine shares of the specified corpora'o stock, then owned by the plaintiff, at the price of twenty-five 92-100 dollars per share. In order to' the execution of the agreement, there were necessary, on the part of the defendant, an affirmative act giving notice to the plaintiff of tlio exercise of his option to purchase, and actual payment of the purchase price, within the time stipulated ; and, on the part of the plaintiff, a transfer and delivery of the shares to the defendant. Notice of the exercise of the option, accompanied by a tender of the purchase money, would have bound plaintiff to execute the contract, on his part, or respond in damages. Whether or not the promise was founded on a valuable ‘consideration affected only the plaintiff’s obligation to perform it. If it was a nvdmn pactum, it was competent, nevertheless, for plaintiff to carry it out if he chose to do so. On .January 16th following, plaintiff delivered to defendant the specified shares, and the latter executed to the former the following instrument: “Huntsville, Ala. Jan’y 16th, 1894. Received of John Hertzler, Jr., (49) forty-nine shares of the capital stock of the Hagey Hospital Association of Texas, to be paid for as per terms of a contract duly signed by said Hertzler, Jr., dated January 8th, 1894, or the said forty-nine shares of stock to be returned by me to said Hertzler, within the time specified in said contract.” It is observed that in the agreement of January 8th there was no recital or spiulatiou, express or implied, of, or for, a delivery of the stock to the purchaser, except: in actual execution of a full and complete exercise of the option to purchase, within the time specified. A subsequent delivery, therefore, to, and its acceptance bv, the defendant, within the time, uncontrolled by any further stipulation altering or limiting their effect, must necessarily be taken as an act in exercise and execution of the option to purchase, and not as a mere incident, and part of, the option itself. Such delivery is something that goes beyond, and evidences the exercise ot the option— an act the defendant was not entitled to have perlormed, except upon such exercise, Now, keeping this principle in mind, we find, by the instrument of January 16th, that the stock was delivered to, and accepted by, the defendant, under the express agreement that lie would *429pay for the same, as per terms of the coutraofc of- January 8th. The delivery and acceptance of the stock having no other attribute than an election by the defendant to exercise the option, and performance — by plaintiff— of the agreement, the necessary import of the last agreement is that defendant did exercise the option; and, upon his promise to pay, time was given for payment, as shown by the agreement. It is true the promise was to pay or return the stock within the given time. Most obviously, the right to return was a mere condition of a sale. It was a condition subsequent, the performance or which would have rescinded defendant’s obligation to pay the price. Its performance was subject alone to his election. The plaintiff was powerless to do any act to prevent or effectuate it. It must needs have been performed by the voluntary act of the defendant. Having failed to perform it, the condition was discharged, and the promise to pay became absolute.
The case is unlike that of Wailes v. Howison, 93 Ala. 375" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/wailes-v-howison-6514424?utm_source=webapp" opinion_id="6514424">93 Ala. 375. There the delivery of tlfe options, as they were called, was a part of the option to purchase itself. The provision to pay, or return the options, within thirty days, was considered in connection with other stipulations of the contract, notably, the provision that, ‘Tithe said A. P. Howison or his assigns shall pay or cause to be paid to the said Wm. E. Wailes the sum of ton thous- and dollars, within thirty days, then all the rights which are possessed by said Wailes, by reason of said option, shall accrue no, and. said options become the property of, said A. P. Howison;” and, upon the whole, contract, its construction was that, to render it binding upon Howison,he must have made known his election to exercise the option within the designated time, .unaffected by the fact that he had possession of the options. Here, the promise to pay was made in consideration of the new and independent act of delivery of the stock to the promisor, subject to be discharged by his affirmative act of returning the stock, within the stipulated time. For further elucidation of the principles we lay down, see the authorities collected on brief of appellee’s counsel.
It is not material that the latter agreement was, in part, a receipt. As to delivery of the stock, it was a receipt. The delivery is not disputed. As to the terms and stipulations entered into by the parties, in consid*430eration of the delivery, it is a .contract, with its references, complete in itself, incapable of alteration or modification by prior or contemporaneous oral agreements. See authorities on. brief of appellee’s counsel.
It was not a defense to the action that defendant did not assume to pay the exact sum sued for. Besides, the second pica, if good, was no more than the general issue already pleaded, and defendant was denied no defense he could hayo made under it. The demurrer to that plea was not improperly sustained.
There is no error in the record, and the judgment is affirmed.