delivered the following opinion, dissenting in part.
I fully agree with the majority of the Court that the Chancellor was correct in holding the deed of April 20, 1950, to be an absolute conveyance and not in the nature of a mortgage. I think the Chancellor was also correct in holding that the separate option agreement of the same date was unenforceable on the ground of indefiniteness. The option to purchase granted to Albert Foard was “at and for a fair and reasonable evaluation of said property as determined by the said parties of the first part”, that is to say, by the Sniders. No price was ever fixed by them and none was ever agreed to. If the clause setting forth the elements on which the price was to be “based” has the legal effect of superseding the words quoted, I think the auditor will have *453difficulty in fixing the value of “the consideration paid”— whether more or less than the amount of the mortgages, which itself was in dispute — , the value of the physical improvements and the value of the “improvement of the stock * * Presumably the dairy herd has changed materially in the past four years. It may be noted that in the case chiefly relied upon, Trotter v. Lewis, 185 Md. 528, there was a tender of the maximum amount that could be demanded. But even assuming that the agreement was sufficiently definite, I think it was unenforceable on the ground that the offer to sell within six months was not accepted. And if no contract was made within that period I cannot follow the reasoning whereby it is held that a contract can be spelled out by subsequent waiver or acquiescence in submitting the case to judicial determination.
It is suggested that the letter of October 19, 1950, from counsel for the Foards constituted an acceptance of the Sniders’ offer. This letter first demanded that the Sniders surrender possession of the farm and personal property on the ground that the court on the previous day had dissolved an injunction. But the ruling was simply that possession by the Foards should not be disturbed pending an adjudication on the merits, with the comment that Mr. and Mrs. Carey Foard were not parties to the injunction proceeding. The letter then stated that the Foards “at once wish to redeem the said Farm and Personal Property and to pay you in full all amounts legally due you upon your delivery to them of a merchantable Fee Simple Deed and a Bill of Sale, free of liens * * Referring to the “vague ‘Agreement’, * * * which you induced Albert P. Foard to sign upon the understanding, in substance, that the Deed and Bill of Sale was to secure to you your then loan * * * as stated in the Answer of Albert P. Foard * * the letter stated that the Foards “never understood and never agreed to pay you, for the re-deeding and re-assigning of their Farm and Personal Property, the $6000.00 additional that you claimed * * * *454for * * * alleged improvements * * So far from relying on the agreement as an option, the Foards repudiated it and refused to pay a part of the price therein specified. The final paragraph of the letter stated that if an agreement could not be reached “regarding the amount actually and legally due you, * * * either you or they may obtain a legal adjudication of this question by a Bill for a Declaratory Decree.” An invitation to litigate can hardly be construed as an acceptance of the original offer. Counsel for the Sniders replied to the letter stating that “your demand for possession and redemption of the farm is without merit, inasmuch as the option has expired.”
It is well established that “To effect a contract of sale capable of specific enforcement, the acceptance of an option must conform with the terms of the offer, and ordinarily must be unequivocal, absolute, and free from any condition. Acceptance can be made only on the terms contained in the option, and an attempt to accept on different terms amounts to a rejection of the option.” 8 Thompson, Real Property (perm, ed.), § 4573. See also Morris v. Goldthorp, 60 N. E. 2d 857 (Ill.). I think Albert Foard would have been greatly surprised to learn that, by reason of the letter from his counsel, he then and there bound himself Tor the payment of a sum including $6,000 claimed for improvements to the buildings, particularly in view of his testimony that he understood when the option was signed that he could get the farm for the amount of the mortgage with interest. Nor is there anything in the record to suggest that he or his parents were in a position to make the payment. Albert was an impecunious party, with an earning capacity of $80 a month as a farm hand, deferred from military service because of that employment. His parents were in no better financial condition than they were six months before, when they were unable to refinance their loans. If Albert was willing to exercise the option, he was.clearly not ready or able to do so. It was suggested in argument that the farm now has a large potential *455value, not as a farm, but as a site for commercial or housing development due to the proposed location of a dual highway through or near the farm. If this be true, there is all the more reason to apply the general rule that time is of the essence and that equity should not grant specific performance where delay confers a speculative advantage.
The opinion of the court treats the submission of the case for declaratory decree as a waiver of the Sniders’ right to contest the enforceability of the option agreement. Their answer to the petition for declaratory decree stated that they “ignored the demand of Petitioners’ attorney, in his letter to your Respondents, dated October 19, 1950”, because of their belief that they held fee simple title to the farm. They prayed that the court should determine whether the deed should be construed as a mortgage and “should further determine the effect and enforceability of the ‘Option Agreement’ of April 20, 1950, and what rights, if any, Albert P. Foard has under the same.” I cannot construe this language as a concession that the agreement ripened into a contract at any time. It may be true that if the offer contained in the option had been accepted, in strict accordance with its terms, a reasonable time for payment might be implied. But if there was no acceptance, it seems clear to me that Albert acquired no rights under it. T think the decree appealed from should be affirmed.