The first objection made by the defendants is that the agreement signed by Horsley lacks mutuality of obligation and remedy, and being merely a unilateral contract is incapable of specific performance in favor of either party. There was no obligation, say the defendants, upon the part of Selznick to purchase the stock or to pay the purchase price or to be bound in any manner. The written agreement contains simply the promise of Horsley to sell the stock at a certain price with no promise whatsoever on the part of Selznick. That the amount of consideration is immaterial is well settled. (36 Cyc. *148626.) Further, the complaint alleges a valuable consideration. Selznick having paid for his right to purchase at a future time was not called upon to take any further step until the time arrived. He had the privilege until the tenth day of February to decide whether or not he would purchase the stock, and for this privilege he paid Horsley the consideration which Horsley demanded of him. There was no necessity of giving notice of an intent to accept the option, because he had until that time to determine, and if further time was necessary to enable Horsley to present his papers, the law would imply the right to reasonable further time. (Houghwout v. Boisaubin, 18 N. J. Eq. 315, 319.) In 3 Columbia Law Review, at page 9, James Barr Ames, the former dean of the Harvard Law School, in writing upon this subject, says: “When an option to purchase land is given and accepted, the acceptance is, in most cases, fairly to be interpreted as the giving of a counter promise, so that the resulting bargain is like any other bilateral contract for the sale and purchase of land. But the option may be granted in such a form as to admit of acceptance without any counter obligation. One promises, for instance, under seal or in consideration of one dollar, to convey a certain piece of land to A upon A’s paying, without any obligation to pay, $1,000 therefor within a month. Here the obligation is purely unilateral from beginning to end. If, however, the obligor refuses to accept the money when duly tendered, on no sound equitable principle can he resist A’s bill for specific performance. He has made a valid contract, he did not contemplate a counter obligation, and a decree against him will secure to him the purchase money, the expected equivalent for his undertaking. Borel v. Mead (3 N. Mex. 84), in which the plaintiff was successful, seems to have been such a case.”
It is apparent from reading the definitions given the word “Option” (see “Words and Phrases,” tit. “Option”) that the same is used in two distinct senses. Sometimes it merely refers to a revocable offer, in other connections it means an offer the terms of which have been incorporated into a valid and enforcible contract, and it is always necessary to determine in which sense the court intends it.' With this distinction in mind, it is possible to distinguish the cases on which defendants chiefly *149rely as establishing the doctrine that the courts will not enforce unilateral “ contracts.” Thus, while the head note of Levin v. Dietz (194 N. Y. 376) states that the holding was that “specific performance of a unilateral contract will not be adjudged against the party who has executed it, on behalf of the opposite party who is not in any manner bound by the contract,” an examination of the case will show that there was no contract at all, and that the vendees were attempting to accept an offer that had been withdrawn and which, because it was made without any consideration, could be withdrawn. In fact, the opinion of the Court of Appeals expressly excepts from consideration, as decided' on principles not applicable to the case under consideration, those cases where there was a binding contract. (See pp. 378, 379.) Wadick v. Mace (191 N. Y. l)is likewise clearly distinguishable. There was an express surrender by one of the parties of the right of specific performance which the court held to work a surrender by implication of the same right in the other party, and in addition the description of the property was held to be so indefinite that the court would not be able to decree specific performance even if it were willing to do so. In Carney v. Pendleton (139 App. Div. 152) the Appellate Division in the Second Department, in considering the effect of a written option given by the vendor for a valuable consideration and signed by him, agreeing to sell certain property within a certain time at a fixed price, which option was exercised by the other party within the time stated by a notice to the vendor and demand for performance, held that the agreement became mutual and was enforcible by the exercise of the option. Mr. Justice Burr pointed out the clear distinction between that case and the two cases in the Court of Appeals which we have previously referred to: “The learned " counsel for the respondents claim, and the learned trial court seems to have held, that by two recent decisions of the Court of Appeals this well-established rule had been overthrown. (Wadick v. Mace, 191 N. Y. 1; Levin v. Dietz, 194 id. 376.) We do not so understand them. In Wadick v. Mace (supra) the decision was put upon the ground that it affirmatively appeared from the written instrument that the remedy of Specific performance was expressly waived, and in Levin v. Dietz *150(supra) the decision was put upon the ground that there had been no acceptance of the vendor’s promise to perform until after the promise had been withdrawn. But in the latter case the court seemed to recognize the rule above stated, and says that where the £ agreement sought‘to be enforced gave an option which the party seeking to enforce had expressly accepted within the term of its life * * * under these circumstances * * * there was a ‘binding agreement’ or a ‘ completed bargain,’ and that the written contract although unilateral in form could be enforced.’” (See, also, Fox v. Hawkins, 150 App. Div. 801.)
There are cases in other jurisdictions very similar to this where the question of mutuality has been raised and decided in favor of the one seeking performance. Thus, in Ross v. Parks (93 Ala. 153; 8 So. Rep. 368) it was held that where the owner of land signs an agreement to convey it to a purchaser if the latter will pay $200 at a given time, the expressed consideration of the contract being fifty cents, the election of the purchaser to treat the contract as binding, and to enforce it, gives it such mutuality as will support a suit for specific performance, although the purchaser did not sign the agreement. And on a similar state of facts, it was said, in Johnston v. Trippe (33 Fed. Rep. 530, 536): “Does such a contract indeed lack mutuality ? The seller, for fair consideration, agrees to give the proposed purchaser a certain fixed time in which to make the contract mutual, by acceptance of the offer to sell. If he accepts within the specified time, both parties are fully bound * * *. I see no reason why a court of equity should not enforce such a contract. On the contrary, it seems to me it would be inequitable to refuse its enforcement. I am clear, therefore, that this case does not come within the class where lack of mutuality will prevent enforcement of the contract, and that it does come within a well-recognized exception to that rule, of optional sales upon fair consideration.”
Nor do I conceive that it can matter whether performance is here demanded by Selznick or by his assignee. Upon the failure of Horsley to transfer the stock at the time and place agreed upon, Selznick had the clear right to appeal to the law to compel Horsley to perform his contract. The assignee here offers in the complaint to pay in cash the full consideration of *151140,000. The vendor would thereby get the full consideration for which he has bargained. The law should not permit the extension of the equitable rule to cases not within its reason.
These contracts are not uncommon in the commercial world, and I apprehend it would be a great surprise to find that they are not enforcible either in the hands of the original contractee or his assignee. Selznick in this case stands upon the same right as does a lessee with an option to purchase. As Mr. Justice Carr says in his concurring opinion in the Carney Case (supra): “It is quite common to find such option agreements in leases. It would be going very far to hold that such agreements in leases are not enforcible in equity. If such is to be held, then the holding would be quite contrary to the common understanding of the parties.”
The case of Genevetz v. Feiering (136 App. Div. 736) holds no other rule. In that case the only consideration for the vendor’s promise to sell was the vendee’s promise to purchase. An assignee of the vendee who has not assumed his assignor’s obligation to purchase was there held not entitled to specific performance for lack of mutuality. But here the consideration of Horsley’s promise to sell was not Selznick’s promise, but a valuable consideration paid'at the time. Selznick made no promise to buy and yet within the authorities because he gave a valuable consideration to Horsley for the option he could compel specific performance. Horsley has just as much claim on Selznick’s assignee as upon Selznick, and specific performance should not be denied the assignee, therefore, if allowed to the assignor. If a lease contain an option to purchase, that option may give to the lease its greatest value. If the lease be assigned by the tenant the landlord has the same claim against the assignee as against the original tenant. In neither case is there a promise to purchase. The assignee would seem to have, therefore, an equal right with the tenant to demand specific performance of the promise contained in the option.
We come now to the second question, whether the failure to affix and cancel stock transfer stamps to the writing pleaded, or to pay any transfer tax thereon, constitutes a defense to the action. It is not necessary again to review at length the meaning to be given section 270 of the Tax Law (Consol. Laws, *152chap. 60 [Laws.of 1909, chap. 62], added by Laws of 1910, chap. 38, as amd. by Laws of 1912, chap. 292),* requiring the affixing of stamps, and section 278, providing that “no transfer of stock made after June first, nineteen hundred and five, on which a tax is imposed by this article, and which tax is not paid at the time of such transfer, shall be made the basis of any action' or legal proceedings, nor shall proof thereof be offered or received in evidence in any court in this State,” because these statutes and the few decisions interpreting them received careful consideration in the court below, and we agree with the conclusions reached therein. The language of the Tax Law, as interpreted by the Court of Appeals in Bean v. Flint (204 N. Y. 153) is sufficiently explicit to warrant us in holding'that there is no intention in the law to tax mere offers, intentions or incomplete transactions. The very object of this suit is to effect a transfer of defendant’s interest in this stock to plaintiff, and until that transfer is effected I am of the opinion that no tax is payable under section 270.
I think that the orders appealed from should be affirmed, with costs.
Orders reversed, with separate bills of costs on the separate appeals, and motions for judgment granted, with ten dollars costs.
Since amd. by Laws of 1918, chap. 779.— [Rep.