#### Allan B. Stewart, Plaintiff, *v.*Dwight D. Gillett, Defendant.

(Supreme Court, Allegany Equity Term,

January, 1913.)

Specific performance — land contract — offer of option to purchase — option exercised before withdrawal of offer and within time limit.

Where before the withdrawal of defendant’s written offer, made without consideration, to give plaintiff an option to purchase certain real estate, the offer is accepted within the time limit, there arises an obligation on the part of defendant to convey sai'd real estate, and an obligation on the part of plaintiff to pay the purchase price; and the mutuality of obligations constitutes the consideration essential to establish a valid contract enforcible in equity.

Where defendant, by a written offer made without consideration, gave plaintiff an option to purchase certain real estate and on payment of the purchase price agreed to execute and deliver a good and sufficient full covenant deed, and plaintiff within the time limit of the agreement and before defendant had withdrawn his offer accepted it, he is entitled to a conveyance in which defendant’s wife should join as a grantor; and an arrangement relative . to the deposit of the purchase money in a bank for defendant when *94he should furnish the deed he had agreed to deliver, executed by himself and wife, does not relieve Mm from his obligation under •the contract to convey.

Action to compel specific performance of a contract for the sale of real estate.

G-. W. Harding and Elba Reynolds, for plaintiff.

D. D. Dickson, for defendant.

Brown, J.

On the 15th day of July, 1910, the plaintiff and defendant entered into an agreement in writing whereby the defendant gave to the plaintiff an option to purchase from the defendant certain real estate situate in the town of Hume, Allegany county, H. Y., the plaintiff having sixty days in which to accept the option. In the event the plaintiff should accept said option he was to pay to the defendant the sum of $2,600 as the purchase price, and upon receiving such payment the defendant was to. execute and deliver to the plaintiff a good and sufficient full covenant deed of such real estate. On September 9, 19.10, the plaintiff went to the defendant’s residence with a notary public and a deed as described in the option agreement, stating to the defendant that they had come to close the transaction and had brought the notary along to acknowledge the deed; the deed was produced, the plaintiff again stating to defendant and defendant’s wife that he had come to get the matter closed up — get the deed signed, and-the plaintiff asked the defendant’s wife to sign it, but she stated that she did not care to do it. The defendant claims that the plaintiff agreed to accept the deed without the signature of his wife, and he states that he thereupon signed the deed and acknowledged its execution before the notary, who thereupon signéd the acknowledgment. The plaintiff and the notary claim that the defendant signed the deed and acknowledged its execution before the defendant’s wife was asked to sign and before her refusal. There is some discrepancy as to the narrative of facts occurring after defendant signed and acknowledged the deed. The defendant testified that-he re*95fused to deliver the deed to the plaintiff without being paid the purchase price; the plaintiff testified that he told defendant that he had the purchase money in the shape of drafts and would meet the defendant at the State Bank of Fillmore that afternoon, pay the purchase price and take the deed, provided it was executed by defendant’s wife; that the defendant agreed to have his wife with him at the bank. The plaintiff and the defendant did meet at the bank at the appointed time and, the defendant’s wife refusing to join with her husband in the execution of the deed, it was agreed by the plaintiff and the defendant that the purchase price of $2,600 should be deposited with the cashier of the bank for the defendant and that the money would be paid to the defendant upon the defendant’s delivering to the cashier for the plaintiff a deed signed by himself and wife, approved by the notary. The plaintiff did so deposit such money; the defendant has never furnished such conveyance; the money has since remained on such deposit for defendant. The plaintiff brings this action for specific performance and damages for defendant’s default. The defendant says that, the option being a unilateral agreement with no obligation on the part of the plaintiff, it cannot be specifically enforced by a court of equity, citing Levin v. Dietz, 194 N. Y. 376. It is not believed that such authority relieves the defendant herein. In that case the giver of the option by failure to appear at time for performance virtually withdrew his offer before acceptance; in that case there was no acceptance before withdrawal of the offer to sell; the offer to sell being given by that defendant without any consideration, he was at liberty to withdraw the same at any time before acceptance. That case is not authority for the proposition that if the defendant therein had not withdrawn his offer, and the plaintiff had accepted the same, tendered the purchase price and demanded a deed, the contract would not have become a mutual one and enforceable in equity. I't is elementary that an offer or option made without any consideration to uphold it may be withdrawn at any time before acceptance; it is also elementary that an offer duly accepted while the offer is in force constitutes a contract. It is then *96■that the minds of the parties meet, and there springs into existence a mutuality of obligations that completes the contract. This mutuality of obligations constitutes the consideration essential to establish a valid contract, and has always been held to be enforceable in equity. The Court of Appeals in Levin v. Dietz, *supra,*expressly refused specific performance upon the ground that there was no agreement by the vendees to buy, there was no acceptance by the vendees of the promise of the vendor except such as was involved in their offer to perform at a time when he had withdrawn from his promise,0and there was no mutuality of obligations.

It cannot be claimed from the transaction on the 9th day of September, 1910, that the defendant Gillett withdrew his offer to sell at any time; the finding must be that the offer to sell remained in full force; that the plaintiff accepting the same became bound to purchase. The conversation and acts of the parties constitute a performance by the plaintiff of all that he was required to do and cast upon the defendant the burden of making the conveyance. The fact that plaintiff accepted the defendant’s offer while it was in force completed the contract; there then existed an obligation on the part of the defendant to sell and convey by a good and sufficient full covenant warranty deed, and an obligation on the part of the plaintiff to pay the sum of $2,600. The conversations and agreement as to the way and manner in which these obligations should be performed did not impair, change or modify the mutual obligations. The plaintiff was entitled to a conveyance in which the defendant’s wife should join as grantor, and the arrangement relative to the deposit of the money for the defendant when he should furnish the deed he had agreed to deliver did not relieve defendant from his obligation. The fact that the plaintiff in October, 1911, proposed to settle the controversy by taking advantage of another form of the proposition as contained in the option agreement and pay $2,200, permitting the defendant to reserve the building on the premises in dispute, which was not acceptable to the defendant, in no way changed the relations of the parties, nor interfered with their rights. The only step taken by the defendant to comply with his obligation being in March, 1911, to request *97an attorney to prepare a deed, which was never executed, the defendant must be held to be in default and the plaintiff to be entitled to the relief of having the contract fully performed.

The plaintiff is entitled to a decree that the defendant within ten days after entry of judgment herein deliver to the cashier of the State Bank of Fillmore a good and sufficient full covenant deed, conveying the premises described in the complaint to the plaintiff. The defendant is sixty-seven years of age, his wife forty-seven; the present value of her inchoate right of dower is $220.74, and, in the event that the defendant fails to deliver such deed executed by his wife, the sum of $220.74 must be deducted from the moneys on deposit in said bank, and that amount repaid to the plaintiff by such cashier.

The building upon the premises, owing to natural causes, was in a dilapidated condition in September, 1910; to preserve it from falling the defendant took down a portion of it, piled a part of the lumber upon the premises, and removed a quantity of the value of seventy-five dollars. The plaintiff is entitled to retain and to be paid out of the moneys deposited this sum of seventy-five dollars.

The defendant has had the use and occupation of the premises since September 9, 1910, and has received the rents, issues and profits therefrom; the taxes levied and assessed against said premises up" to the delivery of the conveyance hereinbefore provided for must be paid by the defendant.

The plaintiff has been denied the use and occupation of the premises since September 9, 1910; he also has been denied the use of the purchase moneys deposited in the State Bank of Fillmore for the defendant’s benefit; his damage for being deprived of the use and occupation of the premises can best be ascertained by allowing him interest on the purchase price from the time he placed it at the disposal of the defendant. It would be unfair to deprive plaintiff of the use of both the purchased premises and the purchase moneys. It is but just and fair for defendant to reimburse the plaintiff for the damage occasioned by failure to convey as he had agreed; such damage under the circumstance is the interest on $2,600 *98for two years, four months and twelve days, the sum of $369.20. Such sum must be deducted from the moneys deposited, and returned to plaintiff.

Let findings in accordance with the foregoing memorandum be prepared. The plaintiff is awarded his costs and disbursements.

Ordered accordingly.