dissenting.
I would reverse and decree specific performance.
*393The option executed by the Mundys and the Hessons was valid, and the Mundys made a bona fide acceptance of it within the time prescribed. It thereby became an executory contract for the sale of the property and enforceable by either party. The option did not require that within the sixty-day option period the deed from the sellers be executed and tendered, the title examined and the purchase money paid. It contemplated that the parties have a reasonable time thereafter in which to perform the respective acts required to close the transaction.
On September 19, 1972, a week after the Mundys notified the sellers they would exercise their option, Hesson testified that he went alone to Mundy’s office to “settle up with him”. The evidence is overwhelming that the purpose of this visit was not in fact to close the transaction, or even to work out the details necessary and incident to such closing. Clearly it was preliminary to a repudiation of the contract by the sellers. Hesson said that when he left home his wife told him “to bring back 91,000 if he wanted her to sign the deeds”. Accordingly Hesson walked into Mundy’s office and demanded the immediate payment to him in cash of $91,000. He testified: “The option called for $91,000 and I told him [Mundy] that was what I came for and he didn’t have it.” Hesson further testified: “I told him the deal was off unless he had the $91,000.”
Hesson was not prepared to execute a deed to Mundy when he went to the latter’s office on September 19th. His wife did not accompany him. He had not engaged a lawyer to write the deed. And he did not bring his old deeds with him to the office. He said they were under the seat of his car. When asked why he left them there, he replied: “Well, I wanted to see what he was going to have to say. There was a dozen or more people tried to buy my place and didn’t have the money and I didn’t sell it.” When reminded that he had agreed to sell to the Mundys he answered revealingly: “I didn’t let that one go, either.”
From that day Hesson never communicated again with Mundy in person or in writing. He made no further effort to comply with his contract with Mundy, and on December 14, 1972, he returned the two deeds that Mundy sent him, with the observation: “Your option terminated as of September 24, 1972.”
Conclusive that Hesson terminated and repudiated the contract on September 19, 1972, is the fact that thereafter he dealt with his property with complete disregard of his contract *394with the Mundys. Within about thirty days thereafter, in October, 1972, he granted another option to a third party covering a portion of the land he was under contract to sell the Mundys.
There had been no undue delay on the part of the Mundys after exercising their option to purchase. Shortly thereafter they employed Richard M. Livingston, an attorney, to examine the title to the Hesson property. The title was examined by this attorney as soon as he reasonably could do so. The Hessons never submitted a copy of the deed they agreed to execute. Mundy, thinking .that possibly the sellers expected him to prepare the deeds, had Mr. Livingston prepare them, and they were mailed to Hesson. It was these deeds that were returned by Hesson on December 14, 1972.
Thereafter, and prior to bringing a suit for specific performance, Mundy tried to close the transaction with Hesson, offering to pay for the land in any manner that Hesson desired, or that suited his tax needs. The suit for specific performance was filed approximately four months from the time the option was exercised. Considering the nature and size of the transaction, there was no delay on Mundy’s part. See Crowder v. Commonwealth, 202 Va. 871, 121 S. E. 2d 487 (1961).
The sole ground assigned for denying the Mundys’ specific performance is that they have not shown that they were able, ready, prompt, eager and willing to perform the contract on their part. It is with this holding that I disagree.
There was credible evidence that the Mundys had made arrangements to finance their purchase from the Hessons. Mr. Mundy, a practicing attorney with offices in Monroe, Virginia, and his wife so testified, and there was corroboration. It is inconceivable that Mundy was not ready, willing and anxious to close the transaction. On September 21, 1972, he entered into an agreement to sell a portion of the property covered by the option for $132,000 cash, and a $5,000 cash deposit was made to his real estate agent. While Mundy may have had only $20,000 readily available on September 19, 1972, this was no proof that he could not raise $91,000 within a reasonable time thereafter and upon tender of a deed by the Hessons. On the contrary, a prospective borrower needing $91,000 to close a transaction, who had $20,000 in cash and a tract of land having an established market value of $132,000, would be welcomed by any financial institution in the business of making loans.
*395Further, Mundy should not be penalized for advising Hesson of a way in which the transaction could be handled to result in a tax savings. Overlooked is the fact that, prior to Hesson’s disenchantment with the option he gave, there was no occasion for these parties to deal with each other at arm’s length. They had long been personal friends and Mundy had performed legal services for Hesson.
Notwithstanding Mundy was ready, willing and able to comply with his contract, and did attempt to close the transaction, a tender of the purchase money by him to Hesson was not necessary in view of the actions of the sellers.
“If the defendant puts himself in an attitude of default, resists the performance, and insists that he is not bound by the contract, tender to him is unnecessary. It could serve no purpose so far as he is concerned and would be mere formality. Equity does not insist on purposeless conduct, and disregards mere formalities. Consequently, all that is required in such case is that the plaintiff place himself in favor with the court, and this may be done by a proper offer in the pleadings.” 71 Am. Jur. 2d Specific Performance § 66, p. 95.
When Hesson walked out of Mundy’s office on September 19, 1972, he thought he had terminated the whole transaction. His subsequent course of action was consistent with this belief. He never had a deed prepared, or offered to convey the property with general warranty. Had he believed or even suspected that the Mundys were unwilling or unable to pay him $91,000 in cash, he only had to allow them a reasonable time for the title examination, then tender the purchasers a deed and demand settlement on a day definite. This would have put the Mundys “on their mettle”. But this Hesson did not do. Instead he promptly gave another party an option and then sat back and awaited a law suit. This contrasted with the affirmative actions of Mundy looking toward the closing of the purchase.
White v. Dobson, et al., 58 Va. (17 Gratt.) 262 (1867), was a suit for specific performance of a contract for the sale of land. White alleged that Dobson, without reason, refused to comply with his agreement to sell. Dobson denied the allegation, alleging, among other things, that White had wholly failed to do and perform his obligations under the contract, and having so failed, Dobson insisted that he was absolved from it. The court, speaking through Judge Joynes, said:
*396“The court is of opinion that there is no sufficient evidence that the appellant, before the filing of his bill in this case, received notice, as alleged in the answer of the appellee William Dobson, of the willingness of the said appellee to fulfill on his part, the contract in the bill mentioned. And as the said appellee had notified the appellant of his intention not to fulfill the said contract, the court is further of opinion that the appellant was entitled to file his bill for a specific execution of the said contract without making a tender to the said appellee of the securities provided for therein; and that therefore the decree of the Circuit court dismissing the bill of the appellant is erroneous.. ..” 58 Va. (17 Gratt.) at 265.
See also Major v. Price, 196 Va. 526, 84 S. E. 2d 445 (1954); Wolford v. Jackson, 123 Va. 280, 96 S. E. 237 (1918); Matney v. Barnes, 116 Va. 713, 82 S. E. 801 (1914); and Nyder v. Champlin, 401 Ill. 317, 81 N. E. 2d 923 (1948).
Bateman v. Hopkins, 157 N. C. 369, 373, 73 S. E. 133, 135 (1911), is a case in point. The court there quoted from Pomeroy on Contracts, § 1407, as follows:
“ ‘The doctrine is fundamental that either of the parties seeking a specific performance against the other must show, as a condition precedent to his obtaining the remedy, that he has done or offered to do, or is then ready and willing to do, all the essential and material acts required of him by the agreement at the time of commencing the suit, and also that he is ready and willing to do all such acts as shall be required of him in the specific execution of the contract according to its terms.’ ”
The court then, addressing itself to the facts in the case it was considering, said:
“But in this case the tender of the money was waived by the defendant, and the jury have found that the plaintiff was ready, able, and willing to comply with his part of the contract. If he was not, in the sense that he did not have the money under his control and within his reach, so that he could put his hands on it and pay it over to the defendant at any moment, the defendant has not put him in default by tendering a deed for the land, thus ‘cutting of f plaintiff s right to treat the contract as still existing, ’ as said above. How can the defendant be hurt, in that respect, by the judgment of the *397court? The payment of the money is assured, for the plaintiff must pay it into court before he is entitled to receive the deed.” (Italics supplied)
In the Bateman case the court further said:
“The following are special rules upon the subject, which seem to be settled: ‘(1) An actual tender by the plaintiff is unnecessary when, from the acts of the defendant or from the situation of the property, it would be wholly nugatory. Thus, if defendant has openly refused to perform, the plaintiff need not make a tender or demand; it is enough that he is ready and willing and offers to perform in his pleading. [Citing numerous cases including White v. Dobson, supra.] (2) Where the stipulations are mutual and dependent — that is, where the deed is to be delivered upon the payment of the price — an actual tender and demand by one party is necessary to put the other in default, and to cut off his right to treat the contract as still subsisting. . . .’ ” 157 N. C. at 372-73, 73 S. E. at 134, 135.
In the instant case the conditions of the option were mutual and dependent. There was to be no payment of purchase money by the buyers without the delivery of an executed deed by the sellers. Therefore, if Hesson desired to cut off Mundy’s right to treat the contract as still subsisting, Hesson was under obligation to tender a good and sufficient deed with general warranty of title after having allowed Mundy a reasonable time for title examination.
Manifestly Hesson’s actions on September 19, 1972 did not constitute a compliance with the terms of the option. No reasonable man would normally expect another to have $91,000 cash in his office, or even readily available; or that any purchaser of real estate would surrender $91,000 without a title examination and without being in receipt of a good, valid and sufficient deed from the sellers. However, it has been Hesson’s position throughout this case that he should have been paid $91,000 in cash during the sixty-day option period, and that since he was not paid in cash, and upon his demand, then the “deal was off”. His position was that he was absolved from any responsibility or obligation to the buyers following hisconfrontation with Mr. Mundy on September 19th. This being true, and having done nothing on his own part to comply with his agreement to sell, he is not entitled, in a court of equity, to *398argue that Mundy was not ready, willing and able to comply with his part of the contract.
Paraphrasing Bateman v. Hopkins, supra, if the ability of the Mundys to pay is the issue, how can the Hessons be hurt by a decree of specific performance? The payment of the money is assured for the Mundys must pay it into court before they are entitled to a deed from the Hessons, or from a special commissioner in their behalf.
I’Anson, C.J., and Cochran, J., join in this dissent.