dissenting: Upon all the facts, conditions and circumstances presented by the record in this case, the appellees, in my opinion, were estopped to assert that delivery of the $100,000 on the 20th day of July, 1961, was required to complete the consummation of a contract. The record discloses a deliberate and calculated design by the appellees to mislead the appellant in order to defeat consummation of the contract on the 20th day of July, 1961, if at all possible, by giving the appellant the “run around.”
Prior to July 1, 1961, Souder had been given an option contract to purchase all of the stock of the Tri-County Refrigeration Co., Inc. On July 1, 1961, Lindsay invited Souder upon Souder’s arrival in Manhattan, Kansas, to go with him to the office of Richard C. Wells. (It was stipulated at a pretrial conference on the 25th day of October, 1961, that Richard C. Wells was attorney and agent for the appellees in the transaction here in question. Wells also represented the appellees in the trial of this action as an attorney, and appears on the brief for the appellees in this court.) It was in Wells’ office that the option contract, dated July 1,1961, was prepared and delivered to Souder. It is therefore clear the appellant gave consideration for the written option contract signed by Wells and dated July 1, 1961.
An issue at the trial of this action was the existence of a contemporaneous oral agreement that the $100,000, specified for the purchase of all the capital stock of the corporation in question, would be paid on or before July 20, 1961, if Souder decided to exercise the option. It was Souder’s position at the trial of this matter that no such contemporaneous oral agreement was made. It was Souder’s position that the law implies a reasonable time in such contract, where no definite time is indicated. Nevertheless, the record does disclose that Souder was ready, in any event, to make full payment of the $100,000 on the 20th day of July, 1961.
Since the trial court found against Souder on the existence of a *215contemporaneous oral agreement, it is necessary to disclose in some detail the activity and the statements of the parties and their attorneys regarding this transaction on both the 19th and 20th of July, 1961. The appellant’s brief raises eight points but my remarks will be confined to his fifth point — whether an optionee is required upon acceptance of a written offer to forthwith pay the purchase price.
The evidence is uncontroverted that Lindsay was in the office of the finance manager for the Cities Service Oil Company in Kansas City on July 19, 1961, between 4:30 and 5:00 p.m. From that office he called Lindsay in Manhattan to inform him he was coming to Manhattan the next morning to accept his option and wanted to know if Lindsay wished any good faith money put up. Lindsay said he did not know, that he would have to call attorney Wells. About thirty minutes later Lindsay called Souder back, in Kansas City, and said he did not know because he could not find Wells.
On the morning of July 20, 1961, at about 8:00 a. m., Souder arrived in Manhattan and had a cup of coffee with Lindsay. He told Lindsay he was in Manhattan “to exercise his option.” He asked when the stockholders could get together to make arrangements for completion of the contract. Lindsay told Souder “he did not know where the other stockholder [Torluemke] was and he was not sure when they could get together.”
Souder then went to the office of Joseph W. Menzie, an attorney of Manhattan. Menzie called Lindsay and told him that Souder was there to exercise his option, and Lindsay told Menzie he would have to contact Wells; “Wells was handling everything.” (Emphasis added.)
At this point it must be noted the attorneys, Menzie and Wells, were in charge of the transaction for the parties and that this was during the early business hours of July 20, 1961.
When Souder arrived in Menzie’s office he told Menzie that he was expecting a telephone call about 9:30 a. m. to advise Menzie as to the availability of the $100,000. The record discloses Menzie received the call from Cities Service Oil Company wherein Souder and Menzie were informed that the $100,000 would be available and delivered to Souder in Manhattan by a representative of the company on two and one-half hours’ notice. Menzie thereupon, as counsel for Souder, prepared the written acceptance of the option contract. This acceptance set forth in full the letter of Wells dated *216July 1,1961, and specifically advised Wells of the acceptance of the offer to purchase the capital stock of the corporation in question, and further said:
“It will be appreciated if you would advise me when we may arrange to have a transfer of the stock and the payment for same which I am ready, willing and able to do at your direction.” (Emphasis added.)
The acceptance was dated at Manhattan, Kansas, the 20th day of July, 1961.
After some difficulty Menzie found Wells in the probate court office in Manhattan and prevailed upon him to make a receipt for the acceptance, which was endorsed upon the acceptance and dated the 20th day of July, 1961, at 10:45 a. m. and signed by Richard C. Wells. Menzie then told Wells that if he would let him (Menzie) know when the parties could get together to complete the transaction, he would tell Souder. All Wells would say was that he would see Lindsay. This evidence is undisputed. Thereafter, the record does not disclose that Wells ever called Menzie or personally saw him on the 20th day of July, 1961, to tell him when and where the stock could be transferred and the payment made. The next morning, the 21st day of July, Menzie inquired of Wells when the parties might get together to complete the transaction, and Wells told him the deal was all over.
The record discloses that Souder waited in Menzie’s office on the 20th day of July until noon, then went to lunch, called back about 1:30 or 2:00 p. m., and found that Menzie had not heard from Wells, whereupon Souder went to Lindsay’s place of business, where he waited until about 2:30 p. m. before returning to Augusta, Kansas. Souder testified Lindsay was present in front of the store. He was not sure whether Lindsay heard him say he was returning to Augusta, but he thought Lindsay knew he was leaving.
Souder testified he was ready, able and willing to consummate the transaction on the 20th day of July, 1961, and has been since that date. Mr. Scorza of Kansas City, the finance officer of Cities Service Oil Company, so testified, and the trial court so found by its findings numbered 4 and 5. The trial court also found the acceptance, “Exhibit B,” teas delivered to Richard C. Wells at 10:45 a. m. on July 20th; and this exhibit stated in writing that Souder was ready, able and willing to make the payment of $100,000 at the direction of Wells, for and on behalf of the appellees, upon transfer of the stock of the corporation in question. It may therefore be said, *217as a matter of law, the appellees knew what their agent Wells knew by this acceptance.
After Souder left Manhattan Lindsay and Torluemke went to Menzie’s office on the 20th day of July at about 2:30 p. m., which they contended at the trial was an attempt to deliver the stock to Menzie, who had left his office before their arrival and was not available at that time. Here it must be noted it was Lindsay and Torluemke, the stockholders, who went to Menzie’s office and not Wells who was in complete charge of the transaction for them. Insofar as the record discloses, Menzie at no time knew of the call Lindsay and Torluemke allegedly made at his office on July 20th at 2:30 p. m., and at no time was Menzie advised when or where the appellees were ready to deliver the stock so that he in turn could notify Souder on the 20th day of July.
The record discloses that Wells appeared as counsel for the appellant at the trial but did not testify. The testimony concerning his knowledge and part in the transaction was undenied. Both Lindsay and Torluemke acknowledged him as an agent in the transaction, and the option contract dated July 1, 1961, discloses Wells to be the secretary of the corporation in question. The record also discloses that Torluemke, by his own testimony, was in. town all day on July 20th and received no calls from Wells, except after lunch about 2:00 p. m.
Upon acceptance of the contract by the appellant in the instant case, completion of the contract required a transfer and delivery of the two hundred shares of capital stock of the corporation in question by the appellees to the appellant, and required the appellant to pay the $100,000 to the appellees.
It is an academic rule in the law of sales that delivery and payment are concurrent conditions. Section 42 of the Uniform Sales Act states:
“Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions; that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price and the buyer must be ready and willing to pay the price in exchange for possession of the goods.”
While Kansas has not adopted the Uniform Sales Act, this section is merely declaratory of the common law, and it is the law in Kansas.
Nowhere did the parties here agree that payment should be a condition precedent to delivery of the stock. The trial court found *218there was a contemporaneous collateral oral agreement whereby the appellant was to pay the $100,000 to the appellees on or before July 20 for the two hundred shares of capital stock, in the event the appellant exercised his option. Upon acceptance of the option contract in this case the parties were confronted with completion of the contract by delivery of the stock and payment for it. These were concurrent conditions. Wells obviously did not have the stock with him for delivery at the probate court in Manhattan where the acceptance was delivered to him by Menzie.
The trial court in its memorandum decision considered the questions upon the trial of the case to be twofold: (1) Whether there was a contemporaneous collateral oral agreement between the parties that the appellant should pay for the stock on or before July 20, 1961; and (2) if there was such an agreement, whether the appellant complied with the terms thereof by tendering the purchase price of $100,000 on July 20, 1961. The second question, in my opinion, makes a false assumption that a tender of the purchase price was necessary under the terms of the contract upon all of the facts, conditions and circumstances presented by the record herein.
There is nothing mysterious concerning the legal definition of the word “tender,” It is defined as an unconditional offer of money to pay a debt in Webster’s Third New International Dictionary; and as an offer to deliver something, made in pursuance of some contract or obligation, under such circumstances as to require no further act from the party making it to complete the transfer in Bouvier’s Law Dictionary (Baldwin’s Student Edition, 1934). “Tender” is defined in Black’s Law Dictionary (Fourth Edition) as “An offer of money; the act by which one produces and offers to a person holding a claim or demand against him the amount of money which he considers and admits to be due, in satisfaction of such claim or demand, without any stipulation or condition.”
Under the circumstances here presented, the appellant was not required to make an unconditional offer of money when his acceptance of the option contract was delivered to Wells. No tender of the money at that time was necessary. The appellant had communicated his acceptance of the contract in writing to Wells in which he said he was ready, willing and able to make payment at the appellees’ direction upon transfer of the stock. Under these circumstances, the burden was upon Wells, for and on behalf of *219the appellees, to designate the time and place where the transaction could be consummated by notifying Menzie, for and on behalf of the appellant. Furthermore, Wells’ statement to Menzie and conduct left the impression that Wells would notify Menzie after talking with Lindsay. If, in the opinion of Wells, the consummation of this contract was required on the 20th day of July, 1961, it was his obligation to so direct. Having failed to do so, the appellees cannot be heard to say the contract was not completed on the 20th day of July by the payment of the money, because it was their conduct, through their attorney, which prevented it. They are, in my opinion, estopped from asserting that payment was required on the 20th day of July, 1961, or, perhaps, it should be said they have by their conduct waived such requirement.
The trial court in its memorandum opinion relied upon Bras v. Sheffield, 49 Kan. 702, 31 Pac. 306, where a tenant lessee had an option to purchase the real estate at the expiration of the lease. Suit was brought for specific performance of the contract after the expiration of the lease, without there ever having been an acceptance (an election to purchase) by the lessee before the commencement of the action, and the court held there was no contract. Coupled with the holding was a statement as follows:
“. . . Until they had elected to accept the offer made by Sage, and had paid or tendered the purchase-price stipulated in the contract, there was no sale or transfer of the title. . . .” (p. 710.)
The statement that the lessees were required to make payment or tender of payment to complete the sale after acceptance was dictum, since there was no acceptance. But even so the lessees in the above case at the expiration of the lease would have been in possession of the land. Had there been a timely acceptance, a delivery of the land to the purchasers would have been an accomplished fact. In the instant case the facts are to the contrary; there was never a tender of the stock to the appellant or his attorney, and no directions were forthcoming as to when and where the exchange could be made.
The appellees rely upon 12 Am. Jur., Contracts, § 329, p. 885; Dill v. Pope, 29 Kan. 289; Supply Co. v. Cement Co., 91 Kan. 509, 138 Pac. 599; Briney v. Toews, 150 Kan. 489, 95 P. 2d 355; and Restatement, Contracts, § 315, p. 468, relative to the performance of a condition precedent. They quote the above Am. Jur. citation as follows:
“One who prevents or makes impossible the performance or happening of *220a condition precedent upon which his liability by the terms of a contract is made to depend cannot avail himself of its nonperformance. In other words, he who prevents a thing from being done shall never be permitted to avail himself of the nonperformance which he himself has occasioned. . . .”
The foregoing authorities have no application to the facts in this case. Payment for the stock in this case was not a condition precedent, but a condition concurrent with transfer of the stock by the appellees. If the above quoted citation has application to the facts in this case as clarified by the last sentence, it is in the appellant’s favor. The failure of Wells to direct when and where the stock would be transferred in exchange for the money is responsible for the nonperformance of the appellant to pay the money on the 20th day of July. Nowhere in the written contract or the contemporaneous oral agreement was the time of day or place of exchange indicated. On these points the contract between the parties was silent.
It is respectfully submitted the trial court should be reversed.