The theory of the plaintiffs, as set forth in the complaint and afterwards upheld by them at the trial, is that the instrument of writing sued upon is an absolute contract to sell and convey real estate.
The allegations of the defendant’s answer is that the instrument is “an option, giving and granting unto the defendant the right and privilege of purchasing the mining claims mentioned therein set forth, and that in the event of the failure of the defendant to avail herself of the right and option to purchase said claims on or before August 1, 1903, then said right and option should terminate, and the deeds executed by the plaintiffs in compliance with the terms of the option should be returned by the escrow holder thereof to the plaintiffs for cancellation, according to the terms and conditions of said option agreement.” The defendant admits in her answer that she did not exercise her right of purchase, did not accept said deeds, and disclaims all right, title, or interest in or to said claims. She furthermore admits that she did not pay the cash part of the price stipulated in the offer, and did not deposit the *584saíne with the Bank of Cape Nome or the First National Bank of Seattle, Wash., to the credit of the plaintiffs, and denies that she is indebted to the plaintiffs in any sum whatever.
The questions raised by the pleadings are: What is the meaning of the agreement? And is the instrument an absolute agreement to sell and convey lands ? Or is it, as set forth in defendant’s answer, an agreement giving to defendant within a limited period of time the option to purchase the claims enumerated in the complaint?
It is first to be noted that the instrument is signed by the owners of the mining claims, who are the plaintiffs herein, but is not signed by the defendant. This indicates an intention to absolutely bind the plaintiffs to sell and convey, but to leave the defendant free to purchase or not after August 1, 1903. It will be conceded that men’s acts and omissions often furnish us the best tokens of their motives and intentions.
Turning to the agreement itself, we find in the second and third paragraphs the usual covenant on the side of the plaintiffs for a consideration to sell and convey certain land to the defendant within a certain period, with a corresponding covenant on defendant’s part, in consideration of the plaintiffs’ covenants, to purchase said lands within the same period. If this were all of the agreement, and defendant had signed the agreement, the liability of the defendant in this action would, I conceive under the evidence, be fixed. The third paragraph of the agreement, however, beginning with the words, “And it is mutually agreed,” stipulates that upon the payment of the cash part of the agreed price for the land, and upon the deposit of the stock according to the terms of the agreement, the escrow holder, the Nome bank, or its correspondent, shall turn over the deed from the plaintiffs to the defendant. It further provides that in case said money and stock are not deposited with said escrow holdei in accordance with the terms of the “contract” on or before the first day of August, 1903, then “the said escrow holder is *585authorized and directed to return said deed to said parties of the first part, or their representatives, for cancellation.” In this paragraph is found the language which will serve as the key to open the intention of the contracting parties to clear view. It shows that the agreement was meant to be understood as an offer to sell to defendant the lands at any time not later than August 1, 1903, with the stipulation that at the expiration of that date the offer should be at an end, and both parties should be absolved from their obligation under the agreement, unless the offer made to defendant should be accepted on or before said date. It plainly means that if August 1, 1903, should be allowed by defendant to pass by without accepting the offer, the deeds should be surrendered to the plaintiffs, and surrendered for a definite purpose — namely, for cancellation.
“The obligation by which one binds himself to sell, and leaves it discretionary with the other party to buy, is what is termed in law an ‘option,’ which is simply a contract by which the owner of property agrees with another person that he shall have the right to buy the property at a fixed price within a certain time.” Black v. Maddox, 104 Ga. 157, 30 S. E. 723—citing Ide v. Leiser, 10 Mont. 5, 24 Pac. 695, 24 Am. St. Rep. 17. The terms of the agre'ement come clearly within and are covered by the foregoing definition of an option, and this construction of the agreement accords with the facts and circumstances in evidence.
There are other reasons why the plaintiffs should not prevail in this action. There is no averment in the complaint that the deed put in escrow rémains still at defendant’s command ready for delivery. This, I conceive, is an averment essential to the complaint, and should have been supported by adequate proof -at the trial. If the facts be that the escrow holder passed back to the plaintiffs the deed after August 1, 1903 — the date of the termination of the bailment to the escrow holder — the plaintiffs *586should not recover without alleging and proving that the deed was ready for delivery to the defendant upon her paying over the consideration mentioned in the agreement. Surely the-plaintiffs could not be allowed to receive the price of the land, or any part thereof, while making no offer or showing no disposition to convey the property to the defendant.
Again, the statute of frauds and perjuries enacted for Alaska provides that, unless “an agreement for the sale of real property, or of any interest therein, or unless the same or some note or memorandum thereof expressing the consideration be in-writing and subscribed by the party to be charged, or by his. lawfully authorized agent,” the agreement shall be void. If,, then, the agreement in this case were an absolute contract' to convey and purchase lands, a recovery could not be had according to law, because the defendant, “the party to be-charged,” did not sign the agreement.
Neither the letter in evidence, the prospectus, nor the oral testimony in the case afford any substantial indication that the-defendant ever accepted the terms of the offer expressed in the agreement, nor that she understood the agreement as a contract to buy binding on her; hence, the rights of the parties must be left to rest upon a fair interpretation of the meaning-of the agreement which is the basis of the action. ' The construction I have put upon the agreement leads at once to the-conclusion that the plaintiffs have failed to establish the cause of action against the defendant set forth in their complaint, and the court will therefore find for the defendant upon the issues-, involved in the action.