On Petition for Rehearing.
(192 Pac. 408.)
BURNETT, J.Substantially, this is an action to recover a real estate brokers’ commission for effecting a sale of land. In the former opinion by Mr. Justice Harris, after a discussion of the issues in the case, he arrived at the conclusion that the plaintiffs “cannot compel the payment of such commission in this action on the pleadings as they now are.”
6. In the 'petition for a rehearing, the plaintiffs renew their attack upon the bill of exceptions, contending in substance that there was no sufficient record before the court upon which to base the conclusion reached. The bill consists of a report by a stenographer of all that was said by witnesses, court, and counsel during the trial of the ease, annexed to which are several documents, numbered with the Circuit Court number- of the case and stamped with the *388reporter’s stamp, designating them as Plaintiffs’ Exhibits “A,” “B,” “C,” etc. All of these exhibits were introduced in evidence by the plaintiffs and are alluded to in the report of the testimony by apt descriptions. At the oral argument before us counsel on both sides referred to and used these very exhibits thus attached to the bill of exceptions. That document is signed by the presiding judge, who declares that it was settled, signed and sealed by him April 21, 1919. Besides all this, in the brief in support of the petition for rehearing, counsel say:
“We draw the attention of the court to the option dated September 15, 1911, from the May Land Company to J. L. Hartman and E. L. Thompson.”
With all of these data before us, we know not how to respond to this invitation, except by the examination of the option that appears physically joined to the bill of exceptions. As all of these papers were used before us in the former argument, we feel that under all the circumstances delineated it would he sacrificing substance to form if we declined to consider them in the decision of the case. Therefore, accepting the invitation of counsel for the plaintiffs, we shall consider the option agreement as if it were regularly and properly before us as part of the record on appeal.
7. Respecting contracts of that sort, it is said that:
“An option founded on a consideration is a unilateral agreement binding, from the date of its execution, on the party who executes it; and it becomes a contract inter partes when exercised according to its terms. In such a transaction two elements exist: (1) The offer on the one side which does not become a contract until accepted upon the other; and (2) the *389completed contract to leave the offer open for a specified time.”; 13 C. J. 336.
It is further defined as:
“A continuing offer, binding for the time specified the one who makes it, but not the one to whom it is made, unless he accepts, when it becomes binding upon both”; Benedict v. Pincus, 191 N. Y. 377 (84 N. E. 284).
The very term “option” indicates choice, not obligation. Such a contract is indeed binding as any contract, but only for what it specifies. As to the optioner who executes the instrument for a consideration, it is an offer made by bim to sell upon certain terms which are conditions of his contract, the binding force of which is to restrain him from withdrawing the offer for a certain time. To make it a mutually binding contract compulsory upon the proposed purchaser, the latter must accept the offer according to its terms. Like any other contract based on offer and acceptance, the latter must exactly coincide in all its terms with the former. Until this occurs there is no meeting of minds between the proposer and the accepter, and hence no contract other than the original one binding only upon the man who makes the offer.
Referring, then, to the option, we find that the May Land Company, in consideration of $5,000, “does hereby give to the parties of the second part, their heirs and assigns, an option, and nothing more than an option, to purchase the following described real property, for the sum of $295,000 on the terms and conditions hereinafter set forth.” The terms were: $45,000 in cash on or before October 20, 1911; $30,000 on or before October 20, 1912; an additional *390$50,000 on or before October 20, 1913; an additional $75,000 on or before October 20, 1914; and the balance of $95,000 on or before October 20,1915. ’ ’ There is no stipulation in any way binding the plaintiffs here to pay those suras of money. Their payment was .a condition merely of the option contract which must be met by actual performance, if the plaintiffs would create a situation in which they could compel a conveyance by the author of the option.
Much stress is laid by the plaintiffs in their petition upon these words in the option:
“Said party of the first part hereby agrees that, if the parties of the second part shall exercise the option hereby granted and shall pay to the party of the first part said sum of $45,000 on or before October 20, 1911, the party of the first part will, upon the payment of said $45,000, execute and deliver a deed of conveyance * * to the Title and Trust Company,”
—upon conditions too long to quote, but in substance placing the legal title in the trust company, to hold and to convey to the plaintiffs or their assigns only upon payment of the moneys named in the option. Even yet, there was nothing compelling the plaintiffs to make the payments. The only effect of that clause was to afford them further assurance that the optioner would perform his part of the option and make the conveyance, if the moneys were paid. We read further in the option agreement:
“It is distinctly understood and agreed that time is of the essence of this option, and that the parties of the' second part acquire no rights at law or in equity in the title to said property by virtue of the payment herein made, and that said payment is not made on account of the purchase price of said real property, but is a payment made for this option, and *391that if said property is not bought in accordance with the terms of this option by the parties of the second part on or before October 20, 1911, then and in that event shall the parties of the second part have no further rights whatever, and the option shall have expired and become null and void.”
With this résumé of the option agreement, we return to the contract for the payment of a commission, upon which this action is founded, and which appears as exhibit “A,” attached to the original complaint. We find therein this clause:
“It is understood that you [meaning the plaintiffs] are to form a syndicate for the purchase of this land, and when thé sale is negotiated, it will be understood that this five per cent is due and payable on or before four years, providing the one hundred eighty-four thousand dollars ($184,000) is paid as provided in the contract of .purchase, on or before the end of four years.”
8, 9. That contract, meaning the option agreement, requires certain payments to be made at certain dates; time being of the essence of the stipulation. The theory of the complaint is that the terms of exhibit “A,” attached thereto, have been performed in that the option agreement has been strictly observed “as provided in the contract of purchase.” In that feature the complaint is traversed, which puts upon the plaintiffs the duty of proving the allegation. In a sense evading the general issue, the plaintiffs allege in their reply, not that the money was paid at the times and in the amounts specified in the option agreement, time being of the essence thereof, but that the Parkrose Association gave its notes due and payable as late as October 20, 1918, three years after the final payment was to be made under the option. Moreover, it appears that $10,000 was not paid, but *392is alleged to have been remitted by the May Land Company. In effect, the plaintiffs have alleged in their complaint full performance of the contract npon which the validity of the contract immediately in suit depends, and in their reply rely upon a waiver and extension of time dn the option contract. There is no direct allegation that Emanuel May waived the performance of any part of his original agreement upon which the action is founded. It is not stated that May, the individual, dispensed with the condition of his personal agreement that the purchase price of the land should be “paid as provided in the contract of purchase, on or before the end of four years.” Nothing else appearing therein, the payments to be made meant the delivery of so much money, not the handing over of some promissory notes. “Paid as provided in the contract of purchase” calls for cash, and that, too, at certain times without abatement in amount: Moumal v. Parkhurst, 89 Or. 248 (173 Pac. 669).
As stated in Union Street Ry. Co. v. First National Bank, 42 Or. 606 (72 Pac. 586, 73 Pac. 341):
“It has often been held by this court that the plaintiff must prevail, if at all, upon the matters alleged in his complaint, * * and that he cannot set up one cause of action or suit in the complaint, and recover upon another and different ground' of relief alleged in a reply.”
See, also, Bruce v. Phoenix Co., 24 Or. 486 (34 Pac. 16); Long Creek Bldg. Assn. v. State Ins. Co., 29 Or. 569 (46 Pac. 366); Hannan v. Greenfield, 36 Or. 97 (58 Pac. 888); Young v. Stickney, 46 Or. 101 (79 Pac. 345); Cranston v. West Coast Life Ins. Co., 63 Or. 427 (128 Pac. 427); Waller v. City of New York Co., 84 Or. 284 (164 Pac. 959, Ann. Cas. 1918C, 139).
*393The release, so called, of the plaintiffs, by the May Land Company, from all claims that the company had against the plaintiffs growing ont of the sale of said lands, mentioned in the reply, does not affect the case so far as the performance of the contract is concerned, for, as already shown, the plaintiffs were under no obligation to pay anything to the company, but had only the privilege of making payments, which privilege they could exercise or forego as they chose, either in whole or in part.
On the record before us the reply is a plain departure from the cause of action stated in the complaint. Instead of showing performance of their contract as alleged in their primary pleading, the plaintiffs have disclosed a performance of something other and different from the original stipulation, which profits them nothing. It is believed that this elaborates the conclusion, reached by Mr. Justice Harris, that the plaintiffs “cannot compel the payment of such commission in this action on the pleadings as they now are.” The petition for rehearing is therefore overruled.
Reversed and Remanded. Rehearing Denied.
McBride, C. J., and Benson and Harris, JJ., concur.