
    Samuel A. Jones, Respondent, v. Buell E. Barnes, Appellant.
    
      Specific performance of a contract to convey real property — when ordered — what sufficiently establishes mutuality — refusal of the vendofs wife to join in the deed —financial responsibility of the defendant — what may be considered by the court in t]ie exercise of its.discretion,
    
    In order to justify a court of equity in decreeing specific performance of a contract, the contract must in general be mutual in its obligation and in its remedy.
    Where parties entered into the following agreement:
    “Norwich, N. Y., May 4¡, 1904.
    “ In consideration of §1.00 to me paid, I hereby agree to sell my house and lot on South Broad Street to S. A. Jones for the sum of §3,000.00, this option to hold good until May 12, 1904.
    “BUELL BARNES,”
    and the dollar consideration mentioned therein was duly paid, assuming that there was no mutuality in the obligations of the instrument before its acceptance by Jones, the moment he, within the time fixed, accepts the option given him and tenders the purchase price of the premises, the element of mutuality arises and Barnes is bound to sell and Jones to buy the premises described therein.
    Jones, by tendering the purchase price and by commencing the action for specific performance, thereby estops himself from claiming that he is not bound by the agreement.
    If Barnes refuses to sell, the court may, at the suit of Jones, compel a specific performance of the contract.
    
      The refusal of Barnes’ wife to join in a conveyance of the premises will not prevent a decree of specific performance where Jones consents to take title subject to the inchoate right of dower of Barnes’ wife.
    The fact that Barnes is financially responsible and that Jones has an adequate remedy at law for damages, does not preclude the latter from claiming specific performance.
    The court, in determining whether to exercise its power to compel specific performance, has a right to consider that Barnes does not live upon the premises and that Jones intends to occupy them as a home.
    The right, to compel specific performance of a contract for the sale of land rests in the discretion of the court and may be granted or withheld upon a consideration of all the circumstances and in the exercise of sound discretion.
    Appeal by the defendant, Buell E. Barnes, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 14th day of November, 1904, upon the decision of the court, rendered after a trial at the Chenango Special Term, directing the specific performance of a contract for the sale of real estate.
    The action was brought for the specific performance of a contract. The defendant, on the day it bears date, executed and delivered to the plaintiff an option agreement reading as follows :
    “Norwich, N. Y., May 4, 1904.
    “ In consideration of $1.00 to me paid, I hereby agree to sell my house and lot on South Broad Street to S. A. Jones for the sum of $3,000.00, this option to hold good until May 12, 1904.
    “BUELL BARNES.”
    The defendant at that time was the owner of the premises mentioned in said agreement, subject to the inchoate right of dower of his wife therein. On May 11,1904, the plaintiff tendered the sum of $3,000 to the defendant for a deed of such premises. The defendant refused to accept such tender and give such deed, and his wife refused to join in the execution of a deed thereof to the plaintiff. Upon such refusal the plaintiff told the defendant he would deposit the money in the Chenango National Bank and he could get it there by leaving the deed.
    The only disputed question of fact on the trial was as to the payment of the one dollar mentioned in the option agreement. The plaintiff swore that he paid the dollar to the defendant and the defendant denied it. The court found that the one dollar was paid at the time of the delivery of the instrument. Upon the trial the plaintiff stipulated that he was willing to accept a deed of the premises in question executed by the defendant alone, subject to the inchoate right of dower of the defendant’s wife and to pay to the defendant three thousand dollars therefor. The court rendered a decision in favor of the plaintiff and judgment decreeing specific performance thereon was duly entered, from which judgment defendant appeals.
    
      Hubert L. Brown, for the appellant.
    
      Nelson P. Bonney, for the respondent.
   Chester, J.:

The finding that the consideration of $1 mentioned in the agreement was paid to the defendant by the plaintiff on the 4th day of May, 1904, is sustained by the evidence and by the preponderance thereof. The defendant, it is true, denied it, but the plaintiff testified to it, so as between them, with nothing to discredit the statement of either, there was no preponderance of evidence one way or the other. But the plaintiff had in addition to his testimony the following recital in the agreement itself signed by the defendant: <£ In consideration of $1.00 to meggaidP This recital is an acknowledgment by the defendant that the amount was paid to him and was sufficient, together with the plaintiff’s testimony that he had in fact paid it, to make a preponderance of evidence in his favor and to support the finding of the court, notwithstanding the denial of the defendant.

The appellant insists that the trial court erred in finding that this contract is enforcible in equity, because, as he claims, it is without mutuality.

Ic is undoubtedly the rule that, in order to justify a court of equity in decreeing specific performance, there must be a contract which m general is mutual in its obligations and in its remedy. (Mahaney v. Carr, 175 N. Y. 454, 461; Stokes v. Stokes, 148 id. 708, 716.) I do not think it is necessai’y to determine what the rule of law would be as applied to the option agreement alone, for here the option had, within the time fixed therein, been accepted by the plaintiff. Even if there was no mutuality in the obligations, of the agreement before acceptance by the plaintiff, yet, the moment he accepted the option given him, the element of mutuality arose and the defendant was bound to sell and the plaintiff was bound to. buy. (Johnston v. Trippe, 33 Fed. Rep. 530.)

It is said in 21 American and English Encyclopaedia of Law (2d ed.), 929 : Whatever diversity of opinion may have existed as. to the mutuality of obligation prior to an acceptance of the option,, * * * 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.”

In Wilcox v. Cline (70 Mich. 517) it was held that the acceptance of a written offer to sell real estate within a limited time makes a. complete and mutual contract capable of enforcement in equity.

In that case the acceptance, as well as the offer, was in writing. In the case at bar the acceptance was made by a tender of the amount named in the option as the purchase price of the premises and by keeping that tender good, but, under the authorities, the' fact that the acceptance was not in writing does not alter the case.. In Pettibone v. Moore (75 Hun, 461) Merwin, J., says: “ A bmding contract, enforcible in equity, may be constituted by the proposal of one party and the acceptance of the other. (Fry on 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. (Fry on Spec. Perf. § 181; 1 Chitty on Cont. 96 ; Pomeroy on Spec. Perf. §§ 76, 93 ; Waterman on Spec. Perf. § 137.) ”

The following cases are to the same effect: Worrall v. Munn (5 N. Y. 229); Clason v. Bailey (14 Johns. 484); Old Colony Railroad Corporation v. Evans (72 Mass. [6 Gray] 25); O’Brien v. Boland (166 id. 481); Houghwout v. Boisaubin (18 N. J. Eq. 315); Guyer v. Warren (175 Ill. 328); Cheney v. Cook (7 Wis. 413); Rogers v. Saunders (16 Maine, 92); Smith & Fleek's Appeal (69 Penn. St. 474).

The case then presents a situation where there is mutuality iu the obligations of the parties, and it appeal's to be one which is properly excepted from the general rule as to mutuality of remedy. (Pom. Spec. Perf. [2d ed.] §§168, 169, 170 and notes.) The plaintiff, by his tender and by the commencement of this action, has estopped himself from claiming that he is not bound by the agreement, and nothing appears on this branch of the case to stand in the way of his asking the court to decree specific performance against the defendant. (Boss v. Parks, 93 Ala. 153; 11 L. R. A. 1 48.)

The plaintiff having consented to take subject to the inchoate right of dower of the defendant’s wife, her refusal to join in the deed should not prevent such a decree. (Dixon v. Rice, 16 Hun, 422.)

The facts that the defendant is responsible and that the plaintiff has an adequate remedy at law for damages do not, under the authorities, preclude the latter from suing for such a specific performance. This principle was stated by Chancellor Walwoeth in the early cases of Brown v. Haff (5 Paige, 235, 240) and Phyfe v. Wardell (Id. 268, 282) and has been followed in many cases since. (Crary v. Smith, 2 N. Y. 60; Stone v. Lord, 80 id. 60; Baumnann v. Pinckney, 118 id. 604; Schroeppel v. Hopper, 40 Barb. 425; Losee v. Morey, 57 id. 561.)

The defendant does not live upon the premises but leases them and the plaintiff’s intention in purchasing the jfiace ivas to occupy it as a home. These are facts which the court had a right to consider in determining whether it would exercise its discretion to compel specific performance.

The right to specific performance of a contract rests in judicial discretion-, and may be granted or withheld upon a consideration of all the circumstances and in the exercise of a sound discretion (McPherson v. Schade, 149 N. Y. 16 ; Winne v. Winne, 166 id. 263), and we think the discretion was rightly exercised in this case.

The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs. 
      
       See 11th Am. ed.— [Rep.
     