Appellee sued appellant for breach of the following option to purchase five hundred shares of capital stock of National Air Lines, dated April 29, 1941:
"In accordance with your request, I am pleased to give you an option to purchase 500 shares of the common stock of National Airlines, Incorporated, at $7.50 a share provided you exercise this option at the same time I exercise the option I hold to purchase 100,000 shares of the common stock of this Company. "In any event, this option to you shall be wholly void and of no effect after April 1, 1944. It will be necessary for you to keep me advised by registered mail of any changes of address and in the event this is not done, your option will be void."
The declaration was in three counts. After alleging the option, the first count among other things, alleged that on or about December 15, 1943, the plaintiff gave defendant the following notice of his intention to exercise the option:
"Enclosed please find copy of letter to my agent Mr. Paul R. Scott of Miami, Fla. regarding my opinion on five hundred shares of Nat. Airlines Stock at ($7.50) seven dollars fifty cents per share issued to me by you as part of your option on ten thousand shares. Mr. Scott has in his possession my power of attorney giving him full and legal authority to act in my name. I hereby state it is my intention to exercise said option and that Mr. Scott has the right to act in my name." *Page 299
There was a demurrer and a motion for compulsory amendment to the declaration. A motion to strike the demurrer was denied, the demurrer was overruled, pleas were filed and the case was tried before the Court without a jury. A motion for directed verdict at the conclusion of the plaintiff's case was overruled, and final judgment was entered for the plaintiff, appellee here. This appeal was prosecuted from the final judgment.
Several questions are urged but the only question we feel impelled to answer is whether or not appellee exercised his option in the time and manner required by its terms. If this question requires an affirmative answer the stock should be delivered to him on payment of the price, otherwise his suit should be dismissed.
The lower court answered in the affirmative, apparently on the theory that the option was a continuing offer to sell subject to call at the discretion of appellee. The effect of this holding was to construe the transaction to be a bilateral agreement and any time appellee notified appellant that he was ready to exercise the option the stock should be delivered to the purchaser, the consideration to be forthcoming on receipt of the stock.
In Acheson v. Smiths Inc. 110 Fla. 240, 148 So. 576, this court held an option to be a continuing offer on the part of the optioner to sell, and if limited to a certain time, it is essential that it be accepted by the optionee within that time by compliance with its terms, and if not accepted within the time specified, the right to do so is lost. Such an option is accordingly an executed unilateral contract and not an executory one. It may be converted into an executory contract by compliance with its terms.
The option in question is so clear on this point that it defies interpretation. It was executed without consideration, and gave appellee the privilege of purchasing 500 shares of common stock of National Airlines, Inc. at $7.50 per share. There is the proviso that it be exercised at the same time the optionor exercised a certain other option he holds to purchase 100,000 shares of common stock of the same company, but this proviso is limited by the second proviso, "in any event, *Page 300 this option to you shall be wholly void and of no effect after April 1, 1944." The second proviso qualifies the option as a whole by voiding it if not taken up on or before the date named. The first proviso faded out of the picture after that date. It would hardly be possible to cut off the period for exercising the option in clearer terms.
On December 15, 1943, as shown by the notice here quoted, appellee advised appellant that Mr. Paul R. Scott, a very reputable attorney of Miami, had his power of attorney, giving him full and legal authority to act in his name, that it was his "intention" to exercise the option and that Mr. Scott was authorized to act for him. There followed some correspondence about the option, including instructions to Mr. Scott as to how to raise the money and call the option, but at no time did appellee or his agent come forward with the consideration and demand delivery of the stock.
We find nothing in the record that comes closer to exercising the option than the statement that it was appellee's "intention" to do so. "My intention to exercise said option," implies a date to do so at some time in the future, but there is no indication when, nor was it accompanied by the consideration for the stock. It is perfectly evident that the option could not be exercised after April 1, 1944, and then by appellee offering the consideration and making demand on appellant for the stock, which was never done. It may be inferred from the record that Mr. Scott did not exercise the option because he could not find it in appellee's files. Appellant did not deny giving the option, but stated that he had no recollection of doing so.
The terms of the option were such that there was no room for negotiation as to the amount required to take up the stock. Five hundred shares at $7.50 per share was simple to calculate and Mr. Scott might have as well been advised to close the transaction when he was clothed with power of attorney by appellee. We do find where Scott was instructed on December 15, 1943, to "borrow the money to take up the stock and then sell sufficient to pay off the loan." But we do not find where any other instructions were given him or that any other effort was made to exercise the option prior to April 1, *Page 301 1944. In fact there is no showing to this date that tender in cash or its equivalent has been made to appellant and delivery of the stock demanded.
Appellee attempts to neutralize the foregoing with the contention that appellant's letter of April 29, 1941, and appellee's letter of December 15, 1943, constitute an executory bilateral contract, in that each party promised the other something and each was bound by his promise. The contention is based on the familiar rule that when one buys personal property at a stipulated price and no time of payment is stated, the law presumes that the price will be paid at the time of delivery. In other words, the transaction is for a cash consideration and when this is the case, payment and delivery of the goods are concurrent.
There can be no quarrel with this rule under circumstances where it may be properly invoked, but no such circumstances exist in this case. The time for exercising the option here was as definite as words could make it. From the instructions given Scott we must assume that appellee was aware that his time was limited to April 1, 1944, whether appellant exercised his option to buy the ten thousand shares or not. It is no answer to say that appellee was no more required to trust appellant, than appellant was required to trust appellee. The point is that appellee had an option to purchase that expired on April 1, 1944, and the only way he could exercise it was to put the cash "on the barrel head" and demand delivery of the stock. He cannot, after the time expires, sublimate an inadequate offer devoid of the essence of the contract, into a bona fide offer to exercise his option within the time required.
It is also charged that appellant was responsible for appellee's inaction, in that he repudiated the contract and waived the date for performance. It is a fact that appellee was in the foreign military service when he gave Scott his power of attorney to exercise the option and when he returned to this country, there was considerable correspondence on the point of whether or not appellee had an option, but this all took place after the time limit for exercising expired and since nothing more than an "intention" had been shown to *Page 302 exercise this negotiation, is not material. It might have been a generous jesture on the part of appellant to have extended appellee's time to exercise his option for a period after he returned to the States, but the law does not so require and time was the essence of the option.
An "intention" to exercise an option of this kind does not meet the requirements of the law. Such options are strictly construed and can be satisfied only by a positive and unequivocal declaration to accept. Orlando Realty Board Corporation v. Hilpert, 93 Fla. 954, 113 So. 100; Bullock v. Harwick, et al., 158 Fla. 834, 30 So.2d 539; Christian-Feigenspan v. Popowska, 75 N.J. Eq. 342, 72 A. 1003; Grey v. Nickey Brothers, Inc. 271 Fed. 249.
We think the option in question was tantamount to a fully executed unilateral contract and required appellee or his agent to tender the purchase price for the stock on or before April 1, 1944. We do not think the charge of repudiation or waiver is well grounded because the pertinent circumstances transpired after the time limit for exercising the option, and failure in this voided the option, so the trial court committed error in denying defendant's motion for a directed verdict. Obviously the circuit judge felt that the present case was controlled by our decision in Coleman v. Baker, 157 Fla. 344,25 So.2d 862, an appeal from the circuit court of Duval County wherein the merits of the declaration were tested. Holding that conviction he endeavored faithfully to follow what he considered to be the law of the case but this was an appeal from a final judgment rendered after a trial before the judge on the facts.
The judgment appealed from is accordingly reversed with directions to dismiss the action.
Reversed.
THOMAS, C. J., ADAMS and SEBRING, JJ., concur.
CHAPMAN and BARNS, JJ., dissent.