
    178 F. 765
    HOOGENDORN v. DANIEL et al.
    No. 1,741.
    Circuit Court of Appeals, Ninth Circuit.
    May 2, 1910.
    
      Albert H. Elliot, N. H. Castle, F. E. Fuller, C. A. Riddle, and Clarence E. Todd, for appellant.
    Ira D. Orton, Campbell, Metson, Drew, Oatman & Mackenzie, and E. H. Ryan, for appellees.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   GILBERT, Circuit Judge

(after stating the facts as above).

The appellant contends that the court below erred in permitting the plaintiff to file the amended complaint. It is unnecessary to cite authorities to the proposition that, in order to promote justice, a court may, in its discretion, permit amendment at any time before or during trial, unless the amendment as violative of some positive rule of law, or is such as to surprise or prejudice the opposite party. It is contended that the effect of the amendment permitted in this case was to change the theory of the suit, and to surprise the appellant to his prejudice. The objection is not well taken on either ground. Both the complaints charged in substance the same state of facts.. In the first it was alleged that the conveyance to the appellant was intended as security, and that the instrument which, two days later, he executed in return, was a defeasance. But a copy of the instrument was attached to the complaint, and the defendant was thereby advised of its purport. The relief sought in both complaints was the same, and it is doubtful whether any amendment was necessary to the original complaint in order that the court might render a just decree upon the issues and the evidence. But, however that may be, it is clear that there was no surprise or prejudice to the appellant, from the fact that the complaint was amended as it was. The amendment was made to conform to the facts as they had been disclosed in the testimony, and in exact accordance with the appellant’s own testimony and theory of the case. He cannot complain if the plaintiff in the suit, after starting out with an erroneous theory or construction of the transaction, and of the option contract, finally, on the trial adopted the true theory, and the one on which he (the appellant) relied from the first.

No sufficient ground is found for disturbing the finding of the trial court, made upon the conflicting testimony, that a tender was duly made. But the appellant contends that the court erred in decreeing specific performance, for the reason that the option was given without consideration, and because there was no contract mutually binding upon the parties. The option recited the payment of $5 to the appellant “in hand paid”; but he testified, and the court found, that no sum was actually paid. Under the circumstances disclosed in the evidence, however, it is clear that the appellant is estopped to deny the payment of the consideration. It is not disputed that Daniel left Alaska with the intention of obtaining the option, and so informed the appellant, and told him that if he could get the property he intended to return to Alaska, otherwise not. After he had seen the option in the possession of the Ruhls, he purchased it, and paid $1,460 therefor in cash. The appellant never at any time informed him that the .option was given without consideration, and his first knowledge of that fact was obtained on the trial when the appellant so testified. It was then too late for the appellant to assert that there was no consideration for the option. If authority is needed upon a proposition so plainly founded on equitable principles, a case in point is Stewart v. Metcalf, 68 111. 109, in which it was held that, in the absence of fraud, a party to a written contract will be estopped from averring anything against the deliberate recitals and admissions contained in the same, especially when it will prejudice and work injury to others who have acted in good faith upon the belief of the facts as stated in the contract.

Nor should specific performance be denied the appellees ■for lack of mutuality of obligation. An “option to purchase land” given upon a valuable consideration is a grant of the right to purchase within the time specified therein, and although it is not binding upon the grantee thereof, until its acceptance, it does become binding and mutual when the offer is accepted, and the payment is tendered, as was done in this case. In such a contract; the purchaser pays for the privilege of his election, and the maker of the option sells him that privilege, and where the contract is free from fraud, and is based upon a sufficient consideration, it imposes upon the maker the obligation to perform it specifically, which equity will enforce. In 21 Am. & Eng. Encl, of Law, 929, it is said: “Whatever diversity of opinion may have existed as to the mutuality of obligation prior to an acceptance of the option, and whether there was or was not, for want of consideration, any obligation resting upon the giver of the option to hold the offer open, 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.” Marthinson v. King, 150 F. 48, 82 C.C.A. 360; Johnston v. Trippe (C.C.) 33 F. 530; Wilcox v. Cline, 70 Mich. 517, 38 N.W. 555; Bradford v. Foster, 87 Tenn. 4, 9 S.W. 195; Sayward v. Houghton, 119 Cal. 545, 51 P. 853, 52 P. 44; Stanton v. Singleton (Cal.) 54 P. 587.

The decree is affirmed.  