Hyperlawhypertext legal databasebeta Pettibone v. Moore 27 N.Y.S. 455

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Pettibone v. Moore

27 N.Y.S. 455 Court N.Y. Gen. Term Decision date 1894-02-15 English

Delivered by MERWIN, J.

Contents

Majority

p. 455
(75 Hun, 461.)
PETTIBONE et al. v. MOORE.
(Supreme Court, General Term, Fourth Department.
February 15, 1894.)

Headnote

1. Contracts—Acceptance op Offer.
A contract provided that, in consideration of a certain rental, defendant agreed to let to plaintiff certain premises, that the agreement should be binding for six months from date, and that defendant would give plaintiff a lease for 99 years on the terms specified. Meld that, though such1 writing was a mere offer to contract, which defendant, before acceptance, could revoke at any time, an acceptance by plaintiff within the time limited, and before notice of revocation, would bind defendant, and a tender by plaintiff of a lease, drawn pursuant to such offer, with a year’s rent, constituted an acceptance.
3. Statute of Frauds—Writing Signed by One Party.
Where a written proposal, signed by the party to be charged, contains all the terms of the proposed contract, so that assent only is required of the other party, such assent may be made verbally, and the contract will be good, as against the party who signed the proposal, though it may not be enforceable against the party giving the verbal assent
Appeal from special term, Oneida county.
Action by Hawley Pettibone- and others against Maria Moore for specific performance. From an interlocutory judgment, sustaining a demurrer to the complaint, plaintiffs appeal. Reversed.
This action is for the specific performance of a written instrument, which is set out in the complaint, and is as follows:
“Trenton Falls, June 3, 1891.
“This agreement, made this 3rd June, 1891, between Maria Moore, Trenton Falls, N. Y., Oneida county, parties of the first part, and Hawley Pettibone, Hartford, Ct., and J. W. Jenkins, of Vernon, Oneida county, N. Y., of the second part, witnesseth: That the part — of the first part, for and in consideration of the annual rental of $1,000, and furnishing the electrical power for lighting of the two hotels, and cottage and pleasure grounds adjoining, of the party of the first part, for three months of each year, agrees to let to the parties of the second part, their heirs and assigns, the sole right to utilize, for power purposes, the fails known as ‘Mill-dam Fall’ and ‘High Falls,’ and the water of the West Canada creek, and right of way for the erection of suitable dam and conduit, and plant, and maintenance thereof, to utilize said power. The parties of the second part are to protect or maintain the walks, on the west bank of said creek, that may be interfered with the erection of said dam. This agreement, or lease, is binding for six months from date. Party of the first part will give, on the above terms, a lease for 99 years to the parties of the second part, subject to payment of annual rental.
“Maria Moore,
“Party of the First Part. “Hawley Pettibone,
“J. W. Jenkins,
“Parties of the Second Part.
“Witness: C. E. Moore.”
It was also alleged that, after the malting of the said agreement, and on the strength of it, the plaintiffs expended large sums of money in the purchasing and leasing of other rights and premises, near and adjoining the premises therein mentioned, and to be used
p. 456
in connection therewith, and so as to enable the plaintiffs to use the water power of the stream leased from defendant, and that they «pent much time in effecting such purchases and leases; that, unless specific performance of defendant’s agreement can be had, plaintiffs cannot avail themselves of the other rights acquired; that, before the expiration of the agreement with defendant, the plaintiffs, being desirous of making a lease with defendant for the term •of 99 years, as provided in said agreement, “made a legal tender to the defendant of the sum of $1,000, at the same time producing duplicate leases, for the term of 99 years from the date thereof, of the above mentioned premises and rights, drawn in conformity with the provisions of said agreement of June 3, 1891, which said duplicate leases were duly signed by the said Pettibone & Jenkins, and the «aid defendant was requested to sign the same; that she refused to accept the said sum of money, and refused to sign said leases, and still refuses so to do, as plaintiffs are informed and believe.”
The ground of the demurrer is that the complaint does not state facts sufficient to constitute a cause of action.
Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
William Kernan, for appellants.
Matteson & De Angelis, for respondents.

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.

p. 457
103 ;) 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,

p. 458
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.

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