*607Decided November 29, 1910.
On Petition foe Rehearing.
[Ill Pac. 690.]
Opinion
Per Curiam.After a careful re-examination of this case, we are satisfied that the conclusion reached in our former opinion (105 Pac. 404) is correct, and we adhere thereto.
Reversed: Rehearing Denied.
Decided January 31, 1911.
On Motion to Vacate Decree.
[112 Pac. 1085.]
Opinion by
Mr. Chief Justice Eakin.After the mandate in this case had been issued, plaintiff filed a petition, asking that it be recalled and a rehearing granted, on the ground that the decree should have provided that plaintiff recover the $800 earnest payment made by him at the time the option was signed; and for the further reason that the court must have overlooked certain points urged in the briefs and at the oral argument upon the rehearing. The mandate was recalled, and we have reconsidered the whole case, and we adhere to our first opinion.
The complaint alleges that the option given by C. M. Elwert on January 22, 1907, was accepted by Friendly on January 29th, and “plaintiff herein duly notified the said C. M. Elwert that said title, taken in conjunction with said deed from C. P. Elwert and Alyda Elwert, his wife, to her, was satisfactory to him, and that he accepted the same,” etc. This acceptance refers, undoubtedly, to the letter of that date, written by Friendly to C. M. Elwert, which is set out in the statement of the case; and in his testimony he says that he knew when he wrote it that C. M. Elwert claimed to have lost the unrecorded *608deed from C. P. Elwert to her; and that when he wrote the letter of January 29th he was not willing to go on with the purchase or accept a deed from C. M. Elwert without “the missing link in the chain.” The abstract was delivered to him on January 26th, and in the letter he says it is satisfactory, but that it vests the title in C. P. Elwert, and that he is informed she has a conveyance to herself from C. P. Elwert, so that with it a warranty deed from her will be satisfactory, thus qualifying his acceptance, and no agreement is reached between plaintiff and defendant.
Plaintiff urges that there was an unconditional oral acceptance of the option. The only proof of this does not relate to the time mentioned in the complaint, but is given by Mr. Andrews in his testimony, viz. :
“On the 21st (he undoubtedly meant the 28th of January) he (Friendly) telephoned to me he was ready and willing to complete the transaction, as everything was in order, and suggested we should meet at Mr. Dabney’s office on the following afternoon at half past two to complete the transaction. I went up that evening to see Miss Elwert and notified her about the matter. I missed her at home, but met her on Yamhill Street between Seventh and Park and told her about it.”
It can hardly be contended that this constituted a formal acceptance by Friendly. He sent no communication to C. M. Elwert, nor did Andrews state to her that either Friendly or he accepted the option. He only appointed a time and place to meet and complete the transaction. Friendly testified that he “told Andrews that it was O. K. with this deed from Elwert and his wife to C. M. Elwert.” No intimation is given that he accepted or authorized Andrews to accept the option. From all that was said he assumed no liability or obligation to C. M. Elwert to purchase. The title was not yet satisfactory. He at all times, even by the letter of the 29th, left himself free to refuse the title. In cross-examination he was asked:
*609“So when you wrote that letter you meant, of course, that she would have to complete the title and put it in good shape?
“A. I didn’t care how she did it, as long as she got the title to the property clear and free. There are several ways of doing it, had she shown the right spirit about the matter.
“Q. But you did not mean to take it with the deed lost unless she cleared the title some way?
“A. Unless she celared the title up through the courts some way.”
5, 6. Although the option being in writing was sufficient, as against C. M. Elwert, to take the case out of the statute of frauds, even though Friendly’s acceptance was not in writing, yet she was not bound to specifically perform, or to respond in damages, until there was an unqualified acceptance by Friendly.
7. If what palintiff contends was an oral acceptance had been in writing, neither it nor the letter of January 29th would have been such an acceptance as would give C. M. Elwert a remedy for specific performance against Friendly; and, if not, there was no agreement. In Davis v. Brigham, 56 Or. 41 (107 Pac. 961), it is held that to make the option obligatory it is necessary that the other party shall have accepted the terms of the option. The option gave to Andrews a choice of two remedies.
“If said title and deed prove satisfactory, said nominee is to- pay me the further sum of * *. If said title is not satisfactory as aforesaid, I agree to refund the said three hundred (300) dollars.”
8. An option to purchase given by an owner of real estate if without consideration is nudum ¡pactum until accepted, and is, in effect, only an offer. And that is true of the option in this case. It was without consideration; the $300 was not a consideration for the option, but an advance payment on the purchase price of the property, in case Friendly accepted it: Rude v. Levy, 43 Colo. 482 *610(96 Pac. 560: 127 Am. St. Rep. 123: 24 L. R. A. [N. S.] 91) ; Berry v. Frisbie, 120 Ky. 337 (86 S. W. 558), and note to Litz v. Goosling, 21 L. R. A. 127.
9. The case of Weir Inv. Co. v. Scatterwood, 42 Colo. 54 (94 Pac. 19), is very much in point here. The option provided that in the event the title was not approved by the attorney for the defendant then the amount paid should be returned. Plaintiff failed to furnish an abstract of title which defendant’s attorney would approve, and defendant refused to accept the title offered. The court, adopting the language of the opinion in Johnson v. Fuller, 55 Minn. 269 (56 N. W. 813), held that “his claim is, in effect, that he could refuse to accept a conveyance, and at any time afterwards compel the vendor to make one. The contract certainly did not contemplate any such thing. What is clearly included was that if, at the end of 30 days, the title should be unmarketable, the vendee might do either of two things: First, perform the contract and take a conveyance, relying on the covenants in it as a security against any defects in the title; or, second refuse to perform and receive back the money paid on it — in effect to rescind the contract.” See, also, Long v. Miller, 46 Minn. 13 (48 N. W. 409).
In Marsh v. Lott, 156 Cal. 643 (105 Pac. 968), it is said:
“Until plaintiff accepted the offer, there could be no mutuality; in fact, no contract whereby plaintiff was obligated in any way. He could signify his acceptance in accordance with the terms of the contract and subject to all, not part, of the conditions imposed thereby.”
In Henry v. Black, 213 Pa. 620, 627 (63 Atl. 250, 253), the court says:
“An acceptance of an option to be good must be such as amounts to an agreement or contract between the parties. Such an acceptance can be only an unconditional one. The rule upon this subject is thus stated in Potts *611v. Whitehead, 23 N. J. Eq. 512: ‘An acceptance, to be good, must, of course, be such as to conclude an agreement or contract between the parties. And to do this it must in every respect meet and correspond with the offer, neither falling within nor going beyond the terms proposed, but exactly meeting them at all points and closing with them just as they stand.’ ”
And in Berry v. Frisbie, 120 Ky. 337 (86 S. W. 558), it is said:
“Where it is left to one of the parties to an agreement to choose whether he will proceed or abandon it, neither can specifically enforce its execution in equity.”
This question is well annotated in Litz v. Goosling, 93 Ky. 185 (19 S. W. 527: 21 L. R. A. 127). To the same effect are Cummins v. Beavers, 103 Va. 230 (48 S. E. 891: 106 Am. St. Rep. 881), with a note in 1 Am. & Eng. Ann. Cas. 986; and Mier v. Hadden, 148 Mich. 488 (111 N. W. 1040: 118 Am. St. Rep. 586), with an extended note in 12 Am. & Eng. Ann. Cas. 88, 91.
10. Plaintiff also insists that we should render judgment against defendant for the $300 advanced upon the option. There is no doubt that the money should be returned to him, but there is no issue tendered in regard to it by either party. The money has been tendered to plaintiff and refused, and this court is not authorized to render a judgment against defendant for money which she offered to pay. Plaintiff has stipulated that “we always claimed they were willing to pay us our $300 back.”
The motion to vacate the decree rendered by this court is denied. Reversed: Rehearing Denied.