dissenting:
It seems to me, that the foregoing opinion is erroneous in its deduction of legal principles from the authorities and in its conclusion upon the facts in this case. It is especially unfortunate in failing to appreciate fully the difference between an offer and an option.
An offer is a mere proposal without any limitation as to time, and, unless accepted at the earliest practicable time, the law presumes it to be withdrawn; and a subsequent acceptance will impose no obligation on the proposer, although he has done no act and given no notice of its withdrawal.
On the other hand an option is a contract, by which the one party agrees to do some specified act upon the assent or acceptance of the other party within a fixed time. The contract consists of the mutual assent of the two parties, that the proposal shall remain open and continue to be binding upon the proposer for the time specified, or until the other party assents to or agrees to accept the proposal, before the time fixed expires. In order to make such contract binding it is not necessary, that there should be any expressed consideration. It will be sufficient, whether any benefit accrues to the proposer or not, if the other party sustains any loss or prejudice as the necessary or implied consequence of the contract or agreement of the parties; that is as expressed in the foregoing opinion “it is sufficient if something flows from the person to whom it is made, and the promise is the inducement to the transaction. ” Upon the assent to or acceptance of the proposal within the time specified, the contract becomes absolute between the parties and their obligations mutual. The contract, then,.ceases to be a mere proposal or option, but a contract mutually. binding upon both parties, either of whom may compel its specific execution in a court of equity. Smith's Appeal, 69 Pa. St. 474; *775Pom. Cont. § 169, and notes; Reynolds v. Tompkins, 23 W. Va. 229; Vassault v Edwards, 43 Cal. 458; Hall v. Center, 40 Cal. 63; Maughlin v. Perry, 35 Md. 352; Edwing v. Gordan, 49 N. H. 444; Attix v. Pelan, 5 Iowa 336; Watts v. Waddle, 6 Pet. 392; 1 Whart. Cont. § 13, and cases cited.
But it is wholly unnecessary to consider or determine these important questions in this case, since it is apparent, that the elaborate discussion of them in the preceding opinion is merely obiter dietum. It is in that opinion, conceded, that the paper signed by John Burr, whether regarded as a mere offer or as an optional contract, was a continual proposal for the sixty days’ time specified therein, and that, if accepted by the plaintiffs within that time, it became a valid contract binding upon the parties. The only material inquiry therefore in this case is, whether the plaintiffs within the sixty days accepted said proposal in such a manner as to convert it into a valid contract binding both upon themselves and the said John Burr.
In Mactier v. Frith, 6 Wend. 103, the court, after full and mature consideration, decided the following propositions: From the moment when the minds of the contracting parties meet, signified by overt acts, the contract is obligatory, although a knowledge of such concurrence is not known at the time to both parties. A bargain may be considered as closed, when nothing mutual between the parties remains to be done to give to either a right to have it carried into effect. The death of a purchaser, after a contract is closed, will not prevent the delivery of the goods to his representative. In this case the sale was made by correspondence, and the purchaser died, before he received the letter of the seller accepting the offer to purchase, but, it appearing that the letter of acceptance was written before the death of the purchaser, the court held, that the sale was completed, although the purchaser died without knowing the purchase had been made, or that his offer had been accepted.
Mr. Justice Marcy, in delivering the opinion in that case, says: “ What I mean by its [the contract] being closed is that nothing mutual between the parties remains to be done to give to either a right to have it carried into effect; *776either can enforce it against the other, or recover damages for the non-fulfillment of it. ” Page 115. And again, on page 119, he says: “ What shall constitute an acceptance will depend, in a great measure, upon circumstances. The mere determination of the mind, unacted on, can never be an acceptance. Where the offer is by letter, the usual mode of acceptance is the sending of a letter announcing a consent to accept; where it is made by a messenger, a determination to accept, returned through him, or sent by another, would seem to be all the law requires, if the contract may be consummated without writing There are other modes which are equally conclusive upon the parties. Keeping silence, under certain circumstances, is an assent to a proposition. Anything that shall amount to a manifestation of a formed determination to accept, communicated, or put in the proper way to be communicated, to the party making the offer, would doubtless complete the contract; but a letter written would not be an acceptance, so long as it remained in the possession or under the control of the writer.
Where the offer is in writing, the acceptance may be by parol. It need not be in writing to constitute a valid contract, capable of being enforced in a court of equity, or for the recovery of damages for its breach at law. Capehart v. Hale, 6 W. Va. 547; Creigh v. Boggs, 19 W. Va. 240.
In the case at bar the witness, Harrison Beading, testifies, that he as the agent for the plaintiffs wrote the body of the paper constituting the option, and that John Burr signed it in his presence; that in July following he called on Burr and told him, the plaintiffs would take said property at the price agreed upon; that Burr handed him his deed for the purpose of getting a description of the land, by which the witness was to have a deed prepared and sent to MacNeel before whom he was to acknowledge it. This witness then testifies: “I told him that the deed would be there in a few days, and for himself and wife to execute the same, bring it to Mr. Alex. F. Matthews at Lewisburg, and the money would be ready. He replied that he would do so.” This testimony is corroborated by Mrs. Burr, who testifies that in July, 1883, Mr. Beading got the old deed from her husband to prepare a deed for them to execute, and that the same *777was to be sent to Mill Point, where MacNeel lived. The testimony further shows that Burr afterwards got the deed which had been prepared for him to execute from MacNeel, but whether it had been sent to Mill Point before or after the sixty days had expired does not appear, but the circumstances tend to show that it had.
Do these facts constitute an acceptance of the proposal on or before the 7th day of August, 1883, the date at which the option expired? If the acceptance was made within the sixty days, it became an absolute contract, mutually binding upon both the parties. But, in order to complete the contract, it must be accepted unconditionally and according to its terms, unless the terms are waived or altered by the consent of both the parties. The option provided that the sale should be for cash, but is silent as to the time of the conveyance of the land. The sale is by the acre, but the quantity pf land is left uncertain by the words “more or less” in the option. The gross sum to be paid is not fixed, but the price is fixed at $6.25 per acre for 500 acres more or less. It is apparent therefore from the face of the paper, that it was a sale by the acre of an uncertain number of acres. In order to fix the quantity of land, so as to determine the gross sum to be paid, a survey was indispensable, and this must have been contemplated by the parties. It was as much the duty of Burr as it was of the purchasers to ascertain the number of acres sold, because that was necessary to fix the amount to be paid. Without having the gross price thus determined Burr could not make a demand for the sum due him, and the purchasers could not pay or even tender the purchase-money. It is also a well-settled principle of law that a sale of land for cash makes the payment of the price and the conveyance of the land dependent and contemporaneous acts. Runkle v. Johnson, 30 Ill. 328. In this option no provision is made for any conveyance. This of itself is the best evidence that the conveyance was to be made at the time the purchase money was paid; for, if payment is to precede the conveyance, then the purchaser will have no means of compelling the conveyance. The contract makes no provision for such conveyance either before or after payment; and therefore according to its terms no action or suit could be brought to compel a conveyance.
*778This was the situation, in which Burr and the plaintiffs’ agent, Beading, found the facts in July, 1883, when they met, and Beading informed Burr, that the plaintiffs would take the land at the price agreed upon. It is evident both from the necessity of the case and the acts and conduct of the parties, that both Burr and Beading understood, that the acceptance then made was absolute and unconditional according to the exact terms prescribed in the option. Neither of them supposed, that the acceptance did not cover all the terms of the offer. Burr being an honest and sensible man knew, that it would be unreasonable as well as impracticable to demand the purchase-money at that time or to expect or desire payment, until the survey had been made, and he had executed and was ready to deliver his deed for the land. He understood his offer required this of him, as it unquestionably did; and therefore he promptly assented to Mr. Beading’s suggestion and voluntarily agreed to go to Mill Point, get the deed, acknowledge it and then take it to Lewis-burg and get his money upon its delivery to the plaintiffs’ attorney. This did not involve any modification of the terms of the written option. It was simply a convenient and satisfactory mode agreed upon by both to carry into effect the contract, which had already been completed by the unqualified acceptance of it by Beading for the purchasers. If Burr did not understand the acceptance was absolute, or if he desired a more formal and definite acceptance, it was his duty then and there to say so, in order to give Beading an opportunity to make it complete and satisfactory to him.
In Stone v. Tyree, Green, Judge, quoting with approval from Jowers v. Phelps, 33 Ark. 468, says : “ A party who by his acts, declarations, or admissions, or by failure to act or speak when he should do so, either designedly, or with willful disregard of the rights of others, induces or misleads another to conduct or dealings which he could not have entered upon but for this misleading influence, will not be allowed afterwards to come in and assert his right to the detriment of the person misled. This would be a fraud.” 30 W. Va. 702 (5 S. E. Rep. 878).
In this instance Burr did not even remain silent, but in the most direct manner affirmed that the acceptance was *779satisfactory to him, and then agreed upon the arrangement for carrying the accepted and completed contract into effect, which he in words assented to as being also satisfactory to him. The ingenuity and verbal analyses so" extensively indulged in the preceding opinion, in order to escape the plain common-sense meaning of this transaction, never occurred to John Burr. It is evident that he at that time fully intended and was no doubt anxious and willing, that the sale should be carried into effect. The probability is, that this purpose continued, until he received the deed sent him to execute, and he found that the quantity of land was less than he had expected it to be. It is possible, that he desired a resurvey of the land or some explanation of the variance and for this reason delayed executing the deed and then died still intending to perform his part of the contract. But, be this as it may, it is certain that he never, during the sixty days the option was in force or at any other time during his life to his family or any one else questioned the validity of the contract he had made or attempted to repudiate or deny, that it was binding upon him.
When the contract became thus completed by the acceptance of the option, the limit of sixty days ceased to have any force. The mutual obligations and rights of both parties from the time of the acceptance depended upon the contract without regard to the limit fixed for the acceptance of the option. There was nothing in the contract thus' completed, which would make it inoperative and void unless carried into effect in sixty days. The parties agreed upon the manner of executing this contract. The agent of the plaintiffs was to send the deed to Mill Point, and Burr and wife were to execute it, and then Burr agreed to take it to Lewisburg, deliver it to the plaintiffs’ attorney and get the purchase-money. It was not a condition of this agreement that the deed was to be sent to Mill Point within the sixty days or within any other fixed time. The deed was however sent in a short time, and was received by Burr. Whether it was within the sixty days or not is wholly immaterial. The plaintiffs fully complied with their part of the agreement, and the only failure to carry out the agreement was on the part of Burr, who, after he received the deed, neither executed nor took *780it to Lewisburg, as he had agreed to do. Neither he nor his representatives can be heard to set up his own default as a ground for avoiding the contract.
The legal eifect of the contract, as we have seen, as well as the positive agreement of the parties entered into at the time the option was accepted was, that the conveyance and payment of the purchase-money were concurrent and dependent covenants or acts. If either wished to put the other in default, it was incumbent upon him to offer to perform his part of the agreement, — that is, before Burr could put the plaintiffs in default, it was his duty to tender the deed, as his contract and agreement required him to do; and, viee versa, in order to put Burr in default, it was incumbent upon the plaintiffs to tender the purchase-money to him.
Neither of these things was done, until this suit was brought, and consequently there was until that time no legal default by either party. But when the plaintiffs brought this suit and tendered with their bill the purchase-money and demanded a conveyance of the land, then the representatives of Burr by refusing to convey were put in default. If Burr or his representatives had sued for a specific performance of this contract, they would have been compelled to tender a deed before they could obtain a decree for the purchase-money. This is the universal practice in the courts of this State.
In Snodgrass v. Wolf, 11 W. Va. 158, this Court held “that covenants are dependent or independent according to the intention and meaning of the parties and the good sense of the case, and technical words should give way to such intention ; ” citing Brockenbrough v. Ward, 4 Rand. (Va.) 355.
Without further prolonging this discussion in a matter, which I regard too plain for any serious difference as to the result, I am of opinion, that the decree of the Circuit Court was clearly right, and should be affirmed.
REVERSED.