Foster v. Newport National Bank , 31 Del. 237 ( 1921 )

Boyce, J.,

delivering the opinion of the court:

The writing upon which this action is based was not signed by the plaintiff, and it in no way possesses any of the elements of a binding agreement upon him. There is nothing in the written instrument, according to its terms, which makes it obligatory upon the plaintiff, unless and until, at a future time, he elects to accept and perform. The writing fairly construed shows that it was to become a binding agreement for the sale and purchase of real estate only upon acceptance by the plaintiff. The transaction between the parties was not a sale, or a contract of sale. It was simply a continuing offer of sale. The defendant did not by signing and delivering the writing sell its properties. Neither did the plaintiff, by reason of anything contained therein, purchase the properties. He was only, at most, invested with a right to purchase them upon specified terms, within a reasonable time in the future, no time being fixed during which the right should be exercised. Whatever binding force there was 'in the writing, signed by the defendant, it was only on one side— unilateral, not bilateral. The defendant was at most, only bound to sell upon compliance with the terms within a reasonable time, and before the offer was withdrawn, if not seasonably accepted. But the plaintiff was not bound to buy, and not until his acceptance and tender of compliance with the terms of the offer could a complete binding contract arise, entirely mutual between the parties, and enforceable either at law for the recovery of damages, or in equity for specific performance.

No time of performance was stipulated in the writing, and the case presented is not one where time is of the essence of any undertaking, except in so far as the subsequent notice to the plaintiff for compliance made time of the essence. Independent of this notice, calling on the plaintiff for compliance, the fact that no time was specified in the original writing for compliance, made it incumbent upon the plaintiff to accept within a reasonable time from the execution and delivery of the writing.

The weight of authority in this country seems to be to the effect that the deed must be prepared by the vendor in the absence of a stipulation to the contrary. 29 Am. and Eng. Ency. of Law, 698. If, however, there was unreasonable delay in complying with the terms of the offer, revocation of the offer could be made without tender of deed and demand of performance by the vendor. If there was unreasonable delay in acceptance and tender of performance, the return of the money paid on account of tfie purchase price was not a condition precedent to the right of the vendor to withdraw his offer of sale. If the subsequent written notice, calling upon the plaintiff for compliance, was reasonable in fixing time for compliance, neither tender of deed, nor of the money received in part payment of the purchase price, was necessary before revocation of the offer of sale.

Coyle v. Kierski et al., 10 Del. Ch. 229, 89 Atl. 598, referred to by counsel in their arguments, was a suit by the alleged purchaser for specific performance. The writing which was the basis of the suit was very similar to the writing in this case and was signed by the owners only. Time for performance was specified, but not complied with. There was a subsequent notice to the purchaser. Specific performance was not decreed. The conclusions reached in this case are, in the opinion of this court, in harmony with the decision of the Chancellor on the main questions in the case before him.

Under the facts of this case, in so far as they are disclosed by the pleadings, the court, after a careful consideration of the arguments, is constrained to hold the several amended pleas (except the third and tenth) good, and to overrule the demurrer as to each of them. The demurrer as to the third and tenth pleas is sustained.