
    Hawley Pettibone and Others, Appellants, v. Maria Moore, Respondent.
    
      A complaint demurred to assumed to be true — written offer without consideration — how withdrawn — an oral acceptance thereof, although not enforcible against the acceptor creates a valid obligation against the pcwty making the offer — Statute of Frauds.
    
    In determining the sufficiency of a complaint, upon the argument of a demurrer, it must he assumed that the facts stated therein, as well as such as may hy reasonable and fair intendment he implied from the allegations thereof, are true.
    A written instrument, given without consideration, which amounts to an offer, may he accepted hy acts or words before its revocation and within the time therein specified, and such acceptance constitutes a sufficient legal consideration for the engagement.
    A written offer, which specifies therein the time for its continuance, presumptively remains open for that time, and if within such time the person making such offer decides to revoke it, it is her duty to so notify the other party.
    A binding contract, enforcible in equity, may he constituted hy the proposal of one party and the acceptance of the other. If the proposal is in writing, signed hy the party to he charged, and contains all the terms of the proposed contract, a simple assent only is required of the other party, which may he verbal, and the contract as against the party signing is good within the Statute of Frauds.
    The fact that a contract, hy reason of the acceptance being verbal, may not he enforcible against the party accepting, is no defense to the party signing the same.
    Appeal by the plaintiffs, Hawley Pettibone and others, from an interlocutory judgment of the Supreme Court, entered in the office of the cleric of the county of Oneida on the 5th day of July, 1893, upon the decision of the court, rendered at the Onondaga County Special Term, sustaining the defendant’s demurrer to the complaint, with notice of an intention to review the order sustaining such demurrer.
    This action was brought for the specific performance of a written instrument which is set out in the complaint and is as follows:
    “ TeeNTON Falls, Jwie 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 Yernon, Oneida county, N. Y., of the second part, witnesseth:
    
      “ Tliat tbe part— of tlie first part for and in consideration of tlie 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 falls 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 ninety-nine years to the parties of the second part subject to payment of annual rental.
    “ MARIA MOOEE,
    
      “ Party of the first part.
    “HAWLEY PETTIBONE,
    “J. W. JENKINS,
    “ Parties of the second part.
    “ Witness. — O. E. Mooee.”
    It was also alleged that, after the making 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 in connection therewith and so as to enable the plaintiffs to use the water power of the stream leased from defendant, and that they spent 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 ninety-nine 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 ninety-nine 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 said defendant was requested to sign the same; that slie 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.
    
      William Kernan, for the appellants.
    
      Ifatteson dé DeAngeUs, for the respondent.
   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 ninety-nine 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 foil' 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. Western Union Tel. Co., 110 N. Y. 403.)

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 notification 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. 103), and if within that time the defendant desired to revoke it, it was her duty to notify the other party. (1 Chitty on Cont. [11th Am. 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 on Spec. Perf. § 184; Waterman on 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 perforin. (See 1 Pars, on Cont. [6th ed.] 481; 1 Chitty on Cont. 11, and note; Bos. & M. R. R. Co. v. Bartlett, 3 Cush. 224.)

In the Bartlett case (p. 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, enforcible in equity, may be constituted by tbe proposal of one party and tbe acceptance of tbe other. (Pry on Spec. Perf. § 166.) If tbe proposal is in writing by tbe party to be charged, and contains all tbe terms of tbe proposed contract, so tbat a simple assent is only required of tbe other party, tbat assent or acceptance may be verbal, and tbe ' contract as against tbe party signing be good within tbe Statute of Frauds. (Fry on Spec. Perf. § 181; 1 Cbitty on Cont. 96; Pomeroy on Spec. Perf. §§ 76, 93 ; Waterman on Spec. Perf. § 137.)

Tbe fact tbat tbe contract, by reason of tbe acceptance being-verbal, may not be enforcible against tile plaintiffs, is no defense for tbe defendant. (Justice v. Lang, 42 N. Y. 494; Mason v. Decker, 72 id. 595.)

Tbe case of The Chicago & G. E. R. R. Co. v. Dane (43 N. Y. 240), cited by tbe counsel for defendant, is not applicable here. There tbe proposal of defendant was to transfer iron not exceeding a specified number of tons at a specified rate. The plaintiff simply assented to tbe proposal and did not specify any number of tons. Tbat left tbe arrangement indefinite and optional with plaintiff as to whether be would furnish any iron for transportation. There was, therefore, no promise, express or implied, to support tbe promise of defendant, a- 1 no consideration for defendant’s promise. It was said tbat if tbe acceptance bad been for a definite amount within tbe limit, a contract mutually obligatory would have resulted therefrom.

We are, therefore, of tbe opinion tbat upon tbe allegations of tbe , complaint tbe agreement there set out should not be deemed to be void for want of consideration. It is not claimed tbat tbe complaint in any other respect is defective.

It follows tbat tbe judgment must be reversed.

ITaediN, P. J., and MaRtiN, <7., concurred.

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