Pettibone v. Moore

27 N.Y.S. 455, 75 Hun 461, 82 N.Y. Sup. Ct. 461, 57 N.Y. St. Rep. 363

• Court: New York Supreme Court
• Decided: February 15, 1894
• Status: Published

Opinion

MERWIN, J.

The agreement in question was not under seal, ■and it is not alleged that possession was taken under it. The claim •of the defendant is that the instrument was simply an option for a .lease, and void, because given without consideration. The plaintiffs claim that the instrument should be construed to be a lease for ¡six months, with the privilege of a renewal for 99 years. It is conceded that, if such is the construction, there would be a sufficient consideration to support the promise to renew.- It was held, at •special term, that the instrument was simply an option for a lease, .and void, for want of consideration. It is, however, claimed by the plaintiffs that, if the agreement was simply an option, it is alleged in the complaint that they elected to take it, and tendered the rent for a year, and a lease in duplicate, signed by them, which they ■requested the defendant to sign, and that, therefore, they are entitled to enforce the agreement, and have the lease. This view of the case seems to call for some further consideration. In determining the sufficiency of the complaint, it must be assumed that the facts stated therein, as well as such as may, by reasonable and fair •intendment, be implied from the allegations made, are true. Milliken v. Telegraph Co., 110 N. Y. 403, 18 N. E. 251. Applying this rule, and treating the agreement as an offer, only, its acceptance within the time of its continuance is, in substance, alleged, and a noti-fication thereof to the defendant. The offer, standing alone, was ■without consideration, and the defendant had a right, at any time before acceptance, to revoke it. The plaintiffs had the right to accept, at any time before its revocation, and within the time specified in it. A time having been specified for its continuance, the offer was, presumptively, open for that time, (Mactier v. Frith, 6 Wend. ;) and if, within that time, the defendant desired to revoke it, it was her duty to notify the other party, (1 Chit. Cont. [11th Amer. Ed.] 16.) If, before such notice, they accepted, there became a completed bargain. The acceptance might be by acts, as well as by words. Fry, Spec. Perf. § 184; Wat. Spec. Perf. 137; White v. Corlies, 46 N. Y. 467. The vital question here is, not whether there was a consideration for the offer, but whether, by acceptance, there became a completed bargain. If so, then the offer, as accepted, showed the terms of the contract, and the consideration upon either side. The acceptance, or assent, imported an undertaking by the acceptor to do and perform all that, by the terms of the contract, he was required to do or perform. See 1 Pars. Cont. (6th Ed.) 481; 1 Chit. Cont. 11, and note; Railroad Co. v. Bartlett, 3 Cush. 224. In the Bartlett Case, 3 Cush., at page 227, it is said in regard to an offer to sell real estate:

“In the present case, though the writing signed by the defendants was but an offer, and an offer which might be revoked, yet, while it remained in force and unrevoked, it was a continuing offer, during the time limited for acceptance; and, during the whole of that time, it was an offer every instant, but, as soon as it was accepted, it ceased to be an offer, merely, and then ripened into a contract. The counsel for the defendants is most surely in the right in saying that the writing, when made, was without consideration, and did not, therefore, form a contract. It was then but an offer to contract, and the parties making the offer most undoubtedly might have withdrawn it, at any time before acceptance. ' But, when the offer was accepted, the minds of the parties met, and the contract was complete. There was, then, the meeting of the minds of the parties, which constitutes, and is the definition of, a contract. The acceptance by the plaintiffs constituted a sufficient legal consideration for the engagement on the part of the defendants. There was, then, nothing wanting, in order to perfect a valid contract on the part of the defendants. It was precisely as if the parties had met at the time of the acceptance, and the offer had then been made and accepted, and the bargain completed at once.”

A binding contract, enforceable in equity, may be constituted by the proposal of one party and the acceptance of the other. Fry, 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. Id. § 181; 1 Chit. Cont. 96; Pom. Spec. Perf. §§ 76, 93; Wat. Spec. Perf. § 137. The fact that the contract, by reason of the acceptance being verbal, may not be enforceable against the plaintiffs, is no defense to the defendant. Justice v. Lang, 42 N. Y. 494; Mason v. Decker, 72 N. Y. 595. The case of Railroad Co. v. Dane, 43 N. Y. 240, cited by the counsel for defendant, is not applicable here. There, the proposal of defendant was to transfer iron, not exceeding a specified number of tons, at a specified rate. The plaintiff simply assented to the proposal, and did not specify any number of tons. That left the arrangement indefinite, and optional with plaintiff, as to whether he would furnish any iron for transportation. There was, therefore, no promise, express or implied, to support the promise of defendant, and no consideration for defendant’s promise. It was said that, if the acceptance had been for a definite amount, within the limit, a contract mutually obligatory would have resulted therefrom. We are, therefore, of the opinion that, upon the allegations of the complaint, the agreement there set out should not be deemed to be void, for want of consideration. It is not claimed that the complaint, in any other respect, is defective. It follows that the judgment must be reversed. All concur.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to answer within 20 days, upon payment of the costs of the demurrer and of the appeal.