
    Frances A. Baker, Respondent, v. Mark Packard, Appellant.
    Fourth Department,
    May 2, 1906.
    Contract — correspondence constituting contract of sale.
    When a party, by letter, offers d ten days’ option to purchase bonds, and another, by letter, states that he elects to purchase, and asks that a date be set “ at which we can get together,’’ and the seller immediately replies that she will be glad to have the purchaser call to-morrow “to make transfer, ’’the correspondence constitutes a valid contract of sale.
    In an action on the breach of such contract the defendant cannot urge the default upon his part as a ground for insisting that the agreement was not enforcible by the vendor.
    Williams and Kruse, JJ., dissented.
    Appeal by the defendant, Mark Packard, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 30th day. of September, 1905, upon. the. verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 30th day of September, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    The action was commenced on the 18th day of March, 1904, to recover damages claimed to have been sustained by the plaintiff on accoupt of a breach of contract alleged to have been entered into between the parties. -
    
      Joseph G. Dudley, for the appellant.
    
      Hiram R. Wood, for the respondent.
   McLennan, P. J.:

The facts are not in dispute. The only question presented by this appeal is whether or not the correspondence which passed between the parties, consisting of three letters, two written for and on behalf of the plaintiff and one by the defendant, constitutes a valid and binding contract.

On the 24th day of October, 1903, McG-uire & Wood, attorneys at Rochester, FT. Y., for and on behalf of the plaintiff wrote to the defendant as follows:

“Dear Sir.— We are authorized by Miss Frances A. Baker, of this city, to give you on her behalf, and you may consider, this letter, an option to purchase, at any -time within ten days from this date, the sixteen thousand dollars’ worth of second mortgage bonds of the Consolidated Gas & Electric Company of Batavia, FT. Y., owned by her, upon the following terms, and conditions: (1) She to retain and collect the past due unpaid interest coupons, the same to be collected as soon as may be without prejudicing the foreclosure action now pending; (2) You to pay eight thousand dollars in cash, and our bill for services and disbursements in the matter to date of transfer, not exceeding, say, four hundred dollars; (3) If you take the bonds under the foregoing conditions, and sell them, or they are paid or otherwise realized upon, and you afe not obliged to bid in the property on the foreclosure sale, you to give Miss Baker, in addition to the above amounts one-half of your profits on . the bonds; (4) This option to be void and inoperative after ten days from date.
“We found the inclosed copy of. the. second mortgage in our papers, which we are glad to let you have.
“'Yours very truly,
“MoGUIBE & WOOD.”

On FTovember 2, 1903, the defendant wrote to McGuire & Wood the following letter:

'“ Gertlemer.— Replying to yours of Oct. 24, beg to say that I elect to purchase these bonds, and wish you would kindly set a date at which we can get together.
• “Please say nothing to the Consolidated Gas'& Electric Co. about this nor to, any one else in fact.- '
“Yours truly,
“MARK PACKARD.”

On the following day, FTovember 3, 1903, McGuire & Wood mailed to the defendant the following letter:

“ Dear Sir.— We would be glad to have you call here to-morrow to make transfer mentioned fin 'yours of yesterday. Wire when you will arrive and we will have client here.
“Yours truly,
“MoGUIBE & WOOD”

When this letter reached the office of the defendant- on November 4, 1903, he was out of the - city of Buffalo and continued to be away for a week thereafter, and no reply was received from him in answer thereto. Tire defendant refused to accept or pay for the bonds referred to in the letter of October twenty-fourth, although requested so to do, and they were duly tendered to him, . and thereupon this action was brought. No question is raised but that the judgment represents the correct amount in case the plaintiff is entitled to recover. „

We think the correspondence, consisting of the three letters referred to, makes a valid and .binding contract, and that upon a breach thereof the plaintiff was entitled to recover the damages sustained. The letter of October twenty-fourth is clear and explicit. It states exactly-upon what terms and -conditions the defendant, might purchase the bonds in question. Before the ten days mentioned therein-expired, and by his letter of November second"' thfe defendant said in effect that he elected to purchase the bonds upon the conditions stated in plaintiff’s letter of October twenty-fourth, and he asked in substance that the plaintiff’s representatives fix a day certain when the transfer might be made and the purchase price paid. The plaintiff’s representatives designated the day following as the time to make such transfer'".and complete the transaction^ The correspondence is in effect an offer by the plaintiff to sell certain property to be transferred by the seller and paid for by the buyer within ten days; a statement by the purchaser that'he accepts the offer, and a request that the seller fix a date when the transfer may be made and money paid, which is fixed at a day within the ten-day period. The offer and acceptance, with request that a date be fixed for the completion of the transaction and the fixing of such date by the plaintiff, made the contract. It cannot be questioned but that if the defendant had appeared in'Bochester on the third day of November and demanded of the plaintiff the bonds in suit, she would have been obligated to have delivered the same upon compliance by him with the conditions specified in the option. The fact that after the expiration of such time the contract may have ceased to have been binding upon her in case the defendant made default by refusing to pay,, we consider of no importance. The defendant would then have been in the-position of having made default, but the plaintiff having been at all times ready and willing to- perform, he could not' urge the default upon his part as a ground for insisting that the agreement was not enforcible by her.

The alleged agreement "is not, as it seems tó us, novel or unusual. A person offers to sell property belonging to him at a certain price to be received and paid for within a certain specified time. The offer is accepted and the seller is asked to fix a day certain within the option period when the property may be delivered and the purchase price paid,, which the seller does. Can there be any doubt but that under such circumstances a valid contract has been made ? In the case at bar, if the plaintiff in her letter of October twenty-fourth had asked the defendant) in case he accepted her offer, to fix a place and time within-the ten days limited when the'bonds might be delivered "and the purchase price paid, and the defendant had fixed such time and place which was assented to by the- plaintiff, could there have been any doubt but that if the plaintiff had appeared at such time and place ready to fulfill upon her part, that the defendant upon his failure to perform would have been liable as upon breach of contract ? The' case at bar as proven by the correspondence in question is no different upon'principle. The defendant in effect stated' to the plaintiff: “ I accept yotir proposition to sell, but you fix a time and place where my acceptance of your option may be consummated.” This the plaintiff did, and we can-hardly conceive of correspondence which more effectually makes a contract alike binding, upon both parties.

The case of Blanchard v. Archer (93 App. Div. 459), relied upon by. appellant’s counsel, we do not consider in point. There the question related to the sale of real property. In that- case the party ^seeking to enforce the contract was the person who had not complied with its conditions within the time specified, and there Was no suggestion, as in this case, that the seller fix the date for the consummation of the agreement. >

We think it is so elementary that perhaps authority cannot be found which decides the express proposition that if a person offers in writing to sell his property upon condition that a certain price be.paid within- a certain specified time, and another accepts in writing such proposition but asks- the proposed- seller to fix a date when the transaction cán be consummated, and the seller does so in a reasonable manner, that _ such correspondence constitutes a- valid contract alike binding upon both parties.

In the case at bar the plaintiff offered to sell bonds upon certain conditions. The defendant agreed to accede to plaintiff’s proposition and asked her to fix a date on which the transaction should be consummated, which she did. Thus a valid contract was made and for the breach of it the plaintiff was entitled to recover the damages sustained.

We conclude that plaintiff’s offer to sell her bonds as evidenced by her letter of October 24, 1903, the defendant’s answer thereto under date' of November 2, 1903, and the plaintiff’s reply dated November 3, 1903, taken together constituted a valid contract which was enforcible by ■ either party, but the defendant having made default, the plaintiff is entitled to recover the amount of damages sustained by the breach of such contract", she having been at all times ready and willing to perform.

It follows that the judgment and order appealed from should be affirmed, with costs.

All concurred, except Williams and Keuse, JJ., who dissented.

Judgment and order affirmed, with costs.  