dissenting.
In granting the “motion for new trial,” the trial judge found there was a genuine *183issue of material fact and set aside the summary judgment. In my opinion, the trial court was correct. I would affirm the order and allow the basic factual question to be tried.
In its broadest terms, the key question is: What occurred on December 31, 1975? Put another way, did Jones exercise the option as written or did he, instead of exercising it as written, obtain a modification of the option and thereafter exercise it? This factual question is the issue which requires trial. Taking the present record most favorably to Jones, there is evidence which would indicate he first exercised the option according to its terms and thereafter attempted to arrange a modification of the terms of purchase. Although the modification failed because Frances Rogers did not agree Jones was entitled to enforce the purchase according to its original terms with which Frances Rogers did agree. Which is to say, if Jones was going to purchase the land, he had to pay cash instead of paying by installments over a two-year period.
Assuming, then, that Jones attempted to exercise the option on December 31, 1975 according to its terms, there are two questions of law on which Jones must prevail in order to succeed in his action for specific performance. The first is whether the option required him to tender the full purchase price in cash on December 31, 1975. If it did, as the majority holds, Jones loses because he did not tender cash on that date. However, the option agreement (quoted by the majority) is silent on whether payment must be tendered at the time the option is exercised. In the absence of an agreement to this effect, the general rule is that payment need not be tendered when the option is exercised but must be tendered within a “reasonable time” thereafter. Mack v. Coker, 22 Ariz.App. 105, 523 P.2d 1342 (1974). See also, anno., “Necessity for Payment or Tender of Purchase Money Within Option Period In Order to Exercise Option, in Absence of Specific Time Requirement for Payment,” 71 A.L.R.3d 1201. In view of this rule, Jones was not required to tender cash when he exercised the option and entered into a binding contract to purchase the land on December 31, 1975.
The second question of law facing Jones is whether he has failed to tender the full cash purchase price within a “reasonable time.” Although the facts presented in this record indicate a substantial amount of cash was tendered within a reasonable time after December 31, 1975, the amount was not equal to the full purchase price. The reason for this is that Jones believed he was tendering cash to the “modified” agreement calling for payment over a period of two years.
Assuming that Jones cannot succeed upon the “modified” agreement, the question is whether the facts presented have thus far excused Jones from a tender of the full purchase price set forth in the original option.
Under the law of contracts, where one party to a bilateral agreement indicates in advance of the date of his performance that he will not perform, the other party is not required to tender his performance in order to enforce the contract in court. See, generally, 71 Am.Jur.2d, Specific Performance, § 66.
Viewing the facts favorably to Jones, that is what happened here. On January 15, 1976, approximately two weeks after Jones exercised the option, Rogers wrote a letter to Jones, in part saying: “I do not wish to sell the property, knowing how valuable it is.” If this was an anticipatory repudiation of the agreement to purchase, which a trial may prove it to have been, then Jones was relieved of any duty to tender the full purchase price in cash prior to bringing his suit for specific performance.
In my opinion, Jones is entitled to a trial on this theory of the case.
There are other matters involved on appeal which essentially have no effect upon the foregoing analysis. Jones argues alternatively that if the only option he attempted to exercise was the “modified” option offered by Rogers without his wife’s consent, it too is enforceable. Unlike the origi*184nal option in the lease, Rogers’ wife did not agree to a modification permitting payment over a two-year period. Resolution of this question requires a determination of whether in Arizona a husband is authorized on behalf of the community to alter terms relating to payment in a contract for sale of land without the written consent of the wife. Since the majority does not reach this issue, neither do I.
In conclusion, I would affirm the order of the trial court and remand the case for trial.