John Petterson, of whose last will and testament the plaintiff is the executrix, was the owner of a parcel of real estate in Brooklyn, known as 5301 Sixth Avenue. The defendant was the owner of a bond executed by Petterson, which was secured by a third mortgage upon the parcel. On April 4, 1924, there remained unpaid upon the principal the sum of $5,450. This amount was payable in installments of $250 on April 25, 1924, and upon a like monthly date every three months thereafter. Thus the bond and mortgage had more than five years to run before the entire sum became due. Under date of the 4th of April, 1924, the defendant wrote Petterson as follows:
I hereby agree to accept cash for the mortgage which I hold against premises 5301 6th Ave., Brooklyn, N.Y. It is understood and agreed as a consideration I will allow you $780 providing said mortgage is paid on or before May 31, 1924, and the regular quarterly payment due April 25, 1924, is paid when due.
On April 25, 1924, Petterson paid the defendant the installment of principal due on that date. Subsequently, on a day in the latter part of May, 1924, Petterson presented himself at the defendant’s home, and knocked at the door. The defendant demanded the name of his caller. Petterson replied: “It is Mr. Petterson. I have come to pay off the mortgage.” The defendant answered that he had sold the mortgage. Petterson stated that he would like to talk with the defendant, so the defendant partly opened the door. Thereupon Petterson exhibited the cash, and said he was ready to pay off the mortgage according to the agreement. The defendant refused to take the money….
Clearly the defendant’s letter proposed to Petterson the making of a unilateral contract, the gift of a promise in exchange for the performance of an act. The thing conditionally promised by the defendant was the reduction of the mortgage debt. The act requested to be done, in consideration of the offered promise, was payment in full of the reduced principal of the debt prior to the due date thereof. “If an act is requested, that very act, and no other, must be given.”
WILLISTON ON CONTRACTS § 73. “In case of offers for a consideration, the performance of the consideration is always deemed a condition.” LANGDELL’S SUMMARY OF THE LAW OF CONTRACTS § 4. It is elementary that any offer to enter into a unilateral contract may be withdrawn before the act requested to be done has been performed. WILLISTON ON CONTRACTS § 60; LANGDELL’S SUMMARY § 4; Offord v. Davies, 142 Eng. Rep. 1336 (C.P. 1862)…. The offer of a reward in consideration of an act to be performed is revocable before the very act requested has been done. Shuey v. United States, 92 U.S. (2 Otto) 73 (1875); Biggers v. Owen, 5 S.E. 193 (Ga. 1888); Fitch v. Snedaker, 38 N.Y. 248 (1868). So, also, an offer to pay a broker commissions, upon a sale of land for the offeror, is revocable at any time before the land is sold, although prior to revocation the broker performs services in an effort to effectuate a sale. Stensgaard v. Smith, 44 N.W. 669 (Minn. 1890); Smith v. Cauthen, 54 So. 844 (Miss. 1911).
An interesting question arises when, as here, the offeree approaches the offeror with the intention of proffering performance and, before actual tender is made, the offer is withdrawn. Of such a case Williston says:
The offeror may see the approach of the offeree and know that an acceptance is contemplated. If the offeror can say “I revoke” before the offeree accepts, however brief the interval of time between the two acts, there is no escape from the conclusion that the offer is terminated. WILLISTON ON CONTRACTS § 60b.
In this instance Petterson, standing at the door of the defendant’s house, stated to the defendant that he had come to pay off the mortgage. Before a tender of the necessary moneys had been made, the defendant informed Petterson that he had sold the mortgage. That was a definite notice to Petterson that the defendant could not perform his offered promise, and that a tender to the defendant, who was no longer the creditor, would be ineffective to satisfy the debt.
“An offer to sell property may be withdrawn before acceptance without any formal notice to the person to whom the offer is made. It is sufficient if that person has actual knowledge that the person who made the offer has done some act inconsistent with the continuance of the offer, such as selling the property to a third person.” Dickinson v. Dodds, 2 Ch. Div. 463 (N.Y. 1876). To the same effect is Coleman v. Applegarth, 11 A. 284 (Md. 1887). Thus it clearly appears that the defendant’s offer was withdrawn before its acceptance had been tendered. It is unnecessary to determine, therefore, what the legal situation might have been had tender been made before withdrawal. It is the individual view of the writer that the same result would follow. This would be so, for the act requested to be performed was the completed act of payment, a thing incapable of performance, unless assented to by the person to be paid. WILLISTON ON CONTRACTS § 60b.Clearly an offering party has the right to name the precise act performance of which would convert his offer into a binding promise. Whatever the act may be until it is performed, the offer must be revocable. However, the supposed case is not before us for decision. We think that in this particular instance the offer of the defendant was withdrawn before it became a binding promise, and therefore that no contract was ever made for the breach of which the plaintiff may claim damages.
The judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed, with costs in all courts.