Hubert L. Brown, for the appellant.
Nelson P. Bonney, for the respondent.
The finding that the consideration of $1 mentioned in the agreement was paid to the defendant by the plaintiff on the 4th day of May, 1904, is sustained by the evidence and by the preponderance thereof. The defendant, it is true, denied it, but the plaintiff testified to it, so as between them, with nothing to discredit the statement of either, there was no preponderance of evidence one way or the other. But the plaintiff had in addition to his testimony the following recital in the agreement itself signed by the defendant: "In consideration of $1.00 to me paid." This recital is an acknowledgment by the defendant that the amount was paid to him and was sufficient, together with the plaintiff's testimony that he had in fact paid it, to make a preponderance of evidence in his favor and to support the findings of the court, notwithstanding the denial of the defendant.
The appellant insists that the trial court erred in finding that this contract is enforcible in equity, because, as he claims, it is without mutuality.
It is undoubtedly the rule that, in order to justify a court of equity in decreeing specific performance, there must be a contract which in general is mutual in its obligations and in its remedy. ( Mahaney v. Carr, 175 N.Y. 454, 461; Stokes v. Stokes, 148 id. 708, 716.) I do not think it is necessary to determine what the rule of law would be as applied to the option agreement alone, for here the option had, within the time fixed therein, been accepted by the plaintiff. Even if there was no mutuality in the obligations of the agreement before acceptance by the plaintiff, yet, the moment he accepted the option given him, the element of mutuality arose and the defendant was bound to sell and the plaintiff was bound to buy. ( Johnston v. Trippe, 33 Fed. Rep. 530.)
It is said in 21 American and English Encyclopædia of Law (2d ed.), 929: "Whatever diversity of opinion may have existed as to the mutuality of obligation prior to an acceptance of the option, * * * the courts are unanimous in declaring that after such acceptance of the terms by the holder of the option, the parties are mutually bound, and either one may compel specific performance by the other."
In Wilcox v. Cline ( 70 Mich. 517) it was held that the acceptance of a written offer to sell real estate within a limited time makes a complete and mutual contract capable of enforcement in equity.
In that case the acceptance, as well as the offer, was in writing. In the case at bar the acceptance was made by a tender of the amount named in the option as the purchase price of the premises and by keeping that tender good, but, under the authorities, the fact that the acceptance was not in writing does not alter the case.
In Pettibone v. Moore (75 Hun, 461) MERWIN, J., says: "A binding contract, enforcible in equity, may be constituted by the proposal of one party and the acceptance of the other. (Fry on Spec. Perf. § 166.) If the proposal is in writing by the party to be charged, and contains all the terms of the proposed contract, so that a simple assent is only required of the other party, that assent or acceptance may be verbal, and the contract as against the party signing be good within the Statute of Frauds. (Fry on Spec. Perf. § 181; 1 Chitty on Cont. 96; Pomeroy on Spec. Perf. §§ 76, 93; Waterman on Spec. Perf. § 137.)"
The following cases are to the same effect: Worrall v. Munn ( 5 N.Y. 229); Clason v. Bailey (14 Johns. 484); Old Colony Railroad Corporation v. Evans (72 Mass. [6 Gray] 25); O'Brien v. Boland (166 id. 481); Houghwout v. Boisaubin ( 18 N.J. Eq. 315); Guyer v. Warren ( 175 Ill. 328); Cheney v. Cook ( 7 Wis. 413); Rogers v. Saunders ( 16 Maine, 92); Smith Fleek's Appeal (69 Penn. St. 474).
The case then presents a situation where there is mutuality in the obligations of the parties, and it appears to be one which is property excepted from the general rule as to mutuality of remedy. (Pom. Spec. Perf. [2d ed.] §§ 168, 169, 170 and notes.) The plaintiff, by his tender and by the commencement of this action, has estopped himself from claiming that he is not bound by the agreement, and nothing appears on this branch of the case to stand in the way of his asking the court to decree specific performance against the defendant. ( Ross v. Parks, 93 Ala. 153; 11 L.R.A. 148.)
The plaintiff having consented to take subject to the inchoate right of dower of the defendant's wife, her refusal to join in the deed should not prevent such a decree. ( Dixon v. Rice, 16 Hun, 422.)
The facts that the defendant is responsible and that the plaintiff has an adequate remedy at law for damages do not, under the authorities, preclude the latter from suing for such a specific performance. This principle was stated by Chancellor WALWORTH in the early cases of Brown v. Haff (5 Paige, 235, 240) and Phyfe v. Wardell (Id. 268, 282) and has been followed in many cases since. ( Crary v. Smith, 2 N.Y. 60; Stone v. Lord, 80 id. 60; Baumann v. Pinckney, 118 id. 604; Schroeppel v. Hopper, 40 Barb. 425; Losee v. Morey, 57 id. 561.)
The defendant does not live upon the premises but leases them and the plaintiff's intention in purchasing the place was to occupy it as a home. These are facts which the court had a right to consider in determining whether it would exercise its discretion to compel specific performance.
The right to specific performance of a contract rests in judicial discretion, and may be granted or withheld upon a consideration of all the circumstances and in the exercise of a sound discretion ( McPherson v. Schade, 149 N.Y. 16; Winne v. Winne, 166 id. 263), and we think the discretion was rightly exercised in this case.
The judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.