This action is brought to- recover damages for the breach of a contract or “ option ” -in. writing under seal, as follows.:
“ New York, October 2.0tk, 1892.
“ In consideration of fifteen hundred dollars to me in hand paid, the receipt whereof is hereby acknowledged, I hereby give and grant to Richard Y.' Boyd the refusal of option from the date ■hereof to the thirty-first day of December, 1892, of purchasing for the sum of eighty-five thousand dollars in cash, that certain tract of land in the -town of Hamaroneclc, -county of Westchester and State of New York, bounded on the south by the Post road or old Westchester turnpike, on the north by the New York, New Haven and Hartford railroad, on the east by Grand Park avenue, and a part of the farm formerly of Benjamin. ÍL Brown, and-on the west, in part by Rockland avenue or West street, and in part by the land formerly of William Di'sbrow, excepting the plot about one hundred feet ■ square .reserved as a family burial gro.uud. , And in the event of -said - Boyd electing within thé time aforesaid to make such purchase., I agree upon, receipt of written notice of such election at least fifteen days, previous to the. expiration of the time aforesaid, to execute to . said Boyd,, or whomsoever he shall name in writing in such notice, a contract for the conveyance of the said 'premises on payment of "eighty-five thousand dollars in easily on the fifteenth day .of January, 1893, by warranty deed conveying a good title in fee simple.
*575“ The fifteen hundred dollars above mentioned, in case of such election to purchase, to be considered a part of the said eighty-five thousand dollars, but in case such election to purchase be not made, to be and and remain my property absolutely.
“ Witness my hand and seal the day and year first above written.
“EDWARD F. De LANOEY. [L. S.j
“ In presence of
“ David J. Hogan.
“ Verified January ith, 1893.”
The jfiaintiff, on December 15, 1892, served a written notice and demand that a contract be executed to him, and therewith submitted to the defendant contracts in blank for execution in accordance with the words and provisions of the option. The defendant acknowledged the receipt of such notice and the contracts, and requested the plaintiff to call. Plaintiff accordingly called on the following day (the sixteenth). The defendant then refused to execute any contract, except one that provided: First, for the exception by him from conveyance of some land in addition to the burial ground; second, for the immediate payment of $1,000 of the purchase money, in addition to the $1,500 already paid on the option; and, third, that the deed should be expressly subject to an agreement between the defendant and one Andrew Wilson, Jr., known as the Grand Park Avenue agreement, which contained convenants against nuisances on the avenue lots. These additional provisions were inserted in the defendant’s handwriting in the contract submitted by the plaintiff; but the latter refused to accept the contract with these alterations, insisting that he was entitled to one in conformity with his option.
On December seventeenth the plaintiff again tendered to the defendant duplicate contracts containing substantially the words and provisions of the option, which the defendant refused to have anything to do with. On December nineteenth the plaintiff’s attorneys wrote to the defendant that, unless he executed and delivered such contract before December twenty-second, they would begin suit. This demand remained unanswered until December thirtieth, when the defendant, through his attorney, tendered to the plaintiff a contract as of the date of December eighteenth, which omitted any provision for the further advance payment of $1,000, but insisted *576on the other two provisions, viz.: First. “Excepting a plot of about one. hundred feet square, fronting on Palmer or Grove avenue, reserved as a family burial ground, together with the part of said avenue adjoining and fronting the same to the center thereofi” Second. That the deed should be subject to the Grand Park Avenue agreement. This contract the plaintiff refused to accept.
. The option required the deed of the lands to be delivered to plaintiff on the 15th of. January, 1893, but that being Sunday the defendant, on the next day, Monday, January sixteenth, tendered to the plaintiff a deed of the property described in the option, conveying the premises to plaintiff with full covenants and warranty and free from all incumbrances.
The questions upon this appeal are: Was defendant guilty .of a breach of the option; and,.if he was, what is the measure of damages ? The first is to be determined by the terms of the option and the acts of the parties. It is conceded that the deed tendered on. January sixteenth in all respects conformed to the terms and conditions of the option; and if this tender was made in time it was a good performance of the option. It .appears, however, that prior thereto the defendant'had refused to enter into the agreement to convey; and the plaintiff was justified in assuming that the defendr ant would not tender a proper deed, and being unable, by reason of this fact, to keep together the persons who, with him, were to furnish the money to pay the defendant, he was not then in a position to pay the balance of the.$85,000 called for in the option. We think that the deed was tendered too late, it appearing that by defendant’s refusal within the time, and in accordance with the terms of the option, to enter into the contract, plaintiff was prevented from obtaining the money necessary to pay for the deed.
The rights of the parties', therefore, are to be determined as of ' the date when the contract should have been executed, for that is the.date when the breach, if any, actually occurred.. When such contract was first demanded the defendant insisted on three additional provisions other than those expressed in the written option. If such insistence constituted a breach, then the defendant was liable for the resulting damage.
Taking these up in their order, as to the $1,000 additional payment exacted, the defendant testified that, although he at first *577insisted upon it, he, upon plaintiff’s request, waived it. This was denied by the plaintiff. Thus apparently an issue of fact was presented which, however,, was taken from the jury upon the defendant’s express request that the court should decide it; and, upon the question of upholding the judgment, we must assume that it did decide it, and against the defendant.
In regard to the Grand Park Avenue agreement there was evidence introduced from which the inference might be drawn that the ■ plaintiff was entirely familiar with its terms at the time the option was given; and there was further evidence of violation of such agreement which would render it inoperative and no longer binding on the defendant. The plaintiff admitted that three years or more prior to entering into the option he had examined the title for a client and had then come across the Grand Park Avenue agreement and read its terms, but he stated that he had no knowledge of its effect upon the defendant’s title. There was no evidence, therefore, that the plaintiff knew all about these restrictions and discussed them with the defendant before he signed the option, and that these restrictions were no longer operative. But this is to be taken in connection with the plaintiff’s testimony that while at one time he had read such agreement in connection with another title his attention had not been called to it and he did. not consider or know its effect as relating to the defendant’s title. Here again there ivas an issue of fact which the defendant requested the court to decide; and though the court then declined to decide it, we must assume from the fact that the judge left only the question of damages to the jury, that he decided against defendant. If we assume that the preponderance of evidence upon this question was so strong in defendant’s favor that it was error to so rule, this, being but one of the grounds assigned as a breach, is not conclusive on plaintiff’s right to recover, for we have still to consider the third condition upon which the defendant insisted throughout and which relates to the burial plot.
It will be noticed that the wording of the option was: “ Excepting the plot about one hundred feet square reserved as a family burial ground.” The exact location of this plot was not fixed in the option, it being the evident intention, as the testimony shows, *578to fix the location definitely in the deed or contract. Instead of such burial plot being about 100 feet square it was much less, the dimensions as stated by the defendant being about 40,by 60 feet .in measurement. This plot was situated - within ■ the property near Palmer or Grove avenue, but not fronting on it., And the exten-' sion of the burial plot so as to front on the avenue would necessarily include more land than was in" the original plot. It did not •belong to-tlie defendant, but to certain trustees under a devise in his - grandfather’s will. It" was inclosed by a stonewall and a gate. .The plaintiff’s1 view of the option was "that this family burial" plot, whatever its dimensions, not exceeding about 100 "feet square, was to be excepted;. whilst defendant insisted that if such burying plot was less than 100 feet square, he still could" except additional land outside of this plot, provided the total amount of land so excepted did not exceed about 100 feet square. As the defendant testified: “ I claimed. I could take 100 feet square whether the family bury- ' ing ground was in it or not. * * * I reserved 100 feet square which is- embracing a family burying ground, and- containing -it for . purposes of-access or entering. My-idea" was not that I could reserve a family burying ground 100 feet square; I was to reservé 100 feet square, including a family burying ground".”' The result under this- construction-"would be, .as. admitted -by the -defendant, that the . trustees under bis grandfather’s will would own the burying ground, and he would have title to the balance of the TOO feet square -so excepted from the contract or deed,
"We think that the plaintiff’s construction -is the correct one. Because it would folio-w that the defendant’s insistence upon a clause in the contract different from that contained in the option, which wonld not -o.nly result in excepting the family burying plot, but leave- in him the additional land, was a breach. These contending constructions the defendant insisted the court should resolve, which it. did" in qilaintiff’s favor, and in so ruling we do not, think there was -error, ...
This leaves for consideration, therefore, the .question of damages. The plaintiff’s contention is that the rule to be applied is the same as though the action was one between- vendor and. vendee under a written contract, where the former had arbitrarily refused to give, as required by its terms, a deed. This" would entitle the vendee to *579the difference between the contract price and the value of. the land at the time of the breach. (Pumpelly v. Phelps, 40 N. Y. 59; cited with approval on the former appeal, 91 Hun, 542; Cockcroft v. N. Y. & H. R. R. Co., 69 N. Y. 204.) That this theory is not sound, we think a brief consideration of the facts will demonstrate. The plaintiff had an option which entitled him to a contract for the sale by defendant to him of the property. The defendant having refused to enter into a contract as provided for in the option, was guilty of a breach. The option required' that in the contract of sale there should be a provision that the deed be delivered in January; Though the defendant did not sign the contract, he did tender a deed in January, in all respects conforming to the terms of the •option. Had the plaintiff then been ready he would have secured the land. Without waiting, however, for the time fixed for the •delivery of the deed, and immediately after the defendant’s refusal to enter into a contract, the plaintiff commenced this suit to recover damages for the defendant’s breach in refusing to make the contract. What the plaintiff was, therefore, entitled to, was the value of the •contract. Upon the question of its value there was no proof, the plaintiff, as stated, proceeding iipon the theory that he was in the •same position as would be a vendee under a contract to convey, and, therefore, entitled to the benefit of the rule which would fix the damages at the difference between the amount he was to pay for the land and the value thereof at the time of the breach. As the cases referred to will show, however, this rule is applicable only where a person having title wrongfully refuses to convey at the time fixed in his ■contract; and to obtain the benefit of such rule the vendee must show that at such time he was able and willing to take the property, and had tendered the amount of money contracted to be paid. Here the deed was tendered at the date specified in the option, and the plaintiff admits that, at that time, he was neither able nor willing to take the land, and was not in a position to pay the consideration. There is necessarily a distinction, therefore, between the rule of damages applicable to a breach of an option to enter into a contract to convey, and that applicable to a breach of a contract to convey after it has been executed. The plaintiff.- might well have regarded the option as the equivalent of such a contract, and if he had waited until the time fixed for the delivery of the deed, and then tendered *580. the amount upon the defendant’s refusal to convey, he would have been entitled to .the damages for which, he contends, He elected, , however, before such time, to sue for á breach -of the option, and - what he .was entitled to was such damages as would compensate him for the injury inflicted by defendant’s refusal to enter into the contract. Such damages, as already said, must be the value- of the contract. • Had the plaintiff shown that, upon obtaining the contract, he .-could have sold it for an advance, or in some other way reaped an - advantage therefrom, such damages'would be., recoverable. In the absence of such proof the plaintiff was ■ not entitled to more than nominal damages,, in addition to the $1;600 which'he had paid for , the option.
The judgment is, therefore, reversed and a new trial ordered, unless plaintiff- stipulates to reduce the amount recovered by the judgment to the- sum of $1,500, and-interest from October 20,1892, with costs in the -court below, including an allowance of five per cent — namely, to the stun of $2,208.78^ in which, casé the judgment as so modified will- be affirmed, Without costs to either party' upon this appeal, In case such stipulation is not. made a new trial will'be ordered, with costs to: the: appellant-to abide the event.
Judgment reversed and new trial Ordered, unless* the- plaintiff stipulates to reduce the amount recovered by the judgment to'the sum .of $1,500,- and interest, from October 20,1892,' with costs in the • court below, including an allowance of five-per. cent—namely, to- . the sum of $2,208.78-—-in which case the judgment as so modified 'affirmed, without costs to either-party-on this appeal. In case such-stipulation is not made new triah ordered,-with.costs to appellant to abide event.