Stokes v. Carpenter — 166 A.D. 441

Majority

p. 441

William E. D. Stokes, Respondent, v. Orlando T. Carpenter and Charles Rush and Others, as Executors, etc., of Reese Carpenter, Deceased, Appellants.

Second Department,

March 5, 1915.

Headnote

Contract—option to purchase interest in real property—pleading— failure to accept option — complaint not stating cause of action •— laches — demurrer.

Where the defendants by a written instrument gave the plaintiff an option to purchase one-half of then interest in certain real estate “at just what it costs, with interest and taxes,” in consideration of services rendered and to be rendered by the plaintiff, the latter in order to enforce his rights under the option must allege facts showing that he elected to accept the same. In the absence of such allegations, he can not recover on a complaint which merely asks that he he informed of the cost of purchasing the half interest in order that he may determine whether he will exercise his option and that defendants be compelled to convey should he decide to tender the proper payment.

A contract between the parties is a condition precedent to the maintenance of such action.

The question of laches is not raised by a demurrer to such complaint when facts are not pleaded which would enter into the decision of the question.

Appeal by the defendants, Orlando T. Carpenter and others, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 5th day of January, 1914, overruling their demurrer to the complaint.

James Dunne, for the appellants.

Mervyn Mackenzie, for the respondent.

Orlando T. Carpenter and Reese Carpenter executed and delivered to the plaintiff the following:

“New York, Sept. 13, 1909.

“In Consideration of One Dollar ($1), of which this is a receipt, and in view of past services, it is agreed for what you have done and for what you are about to do in helping us and in giving your time and attention in the matters of Kensico

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and the surrounding country, we hereby agree that you shall have the option of purchasing one-half of our interest in the property adjoining Kensico at just what it costs, with interest and taxes.

' “ CELANDO T. CARPENTER,

“ REESE CARPENTER.

“To W. E. D. Stokes,

“ Hotel Ansonia, New York City.”

The plaintiff alleges that he has demanded the amount of the costs and expenses of the property and of the moneys received therefrom; that the defendants have neglected and refused to furnish it, and deny that the plaintiff has any right or interest in the premises. There is no allegation that the plaintiff has notified the defendants that he elects to exercise the option or that he will exercise it upon receiving the information requested. On the other hand, he asks that upon ascertainment Of the sum he may determine whether he will exercise the option and that, if he so elects, the' defendants thereupon convey to him upon his making proper payment. The instrument shows a consideration, and upon plaintiff’s acceptance there would be mutuality and a binding agreement. (Carney v. Pendleton, 139 App. Div. 152 ; Fox v. Hawkins, 150 id. 801.) Without such action on the part of the plaintiff, no contract arises. If the plaintiff be uninformed of the amount necessary to tender, he is not on that account excused from making himself a party to the contract. The refusal of the defendants to advise him of'the net cost may be an excuse for not tendering it, but he has no interest in the land until he agrees to the terms of the offer and to perform on his part. In the present action he is speculating. If it appear that the net cost of the property does not suit his purpose, he would continue unbound to purchase it. The condition precédent to the maintenance of the action is that there should be a contract between the parties. There can be none until plaintiff makes himself a party to it by notification that he avails himself of the option. The question of laches is not raised by the demurrer, as there may be facts unplead that would enter into the decision of that question.

The order should be reversed, with ten dollars costs and dis

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bursements, and the demurrer sustained, with costs, with right to the plaintiff to plead over on payment of the same.

Jenks, P. J., Stapleton, Rich and Putnam, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with costs, with right to plaintiff to plead over on payment of same.