Beecher v. Morse

Chandler, J. Prior to September,' 1935, plaintiff was the owner of the premises involved in this dis *515 pnte. Finding 'himself in need of money, he approached one A. Gf. Cameron, a real estate broker, for the purpose of effecting a sale of his property. On September 11, 1935, after consultation with Mr. Cameron, he executed what is termed an offer to sell the premises for the sum of $3,500, upon condition that he be given by the purchaser or purchasers thereof the exclusive option to repurchase the same upon payment of the sum of $4,100 on or before 12 o’clock noon of December 31, 1936. By reason of Cameron’s efforts, defendant was induced to purchase the property, a deed thereto being executed by plaintiff on September 13, 1935. Simultaneously therewith, defendant executed an option giving plaintiff the exclusive right to purchase the premises at any time prior to 12 o’clock noon, December 31, 1936. The option agreement contained this provision: “This option may be exercised by the purchaser only by accepting the same in writing within the time above stated and at the time of such acceptance paying the sum of $4,100 on account of the purchase price, in cash or by certified check and the undersigned agrees not to sell, mortgage or do any act to diminish or incumber the title to said land while this option remains in force. ’ ’ On December 30, 1936, plaintiff attempted to exercise his option by mailing to defendant a cashier’s check drawn on The Detroit Bank in the sum of $4,100, and demanding a deed to the farm. On the following day, said cashier’s check was returned to plaintiff by defendant accompanied by the statement that, “It is not proper tender in accordance with the terms of the option.” Thereafter, under date of January 11, 1937, the same check was' again tendered by plaintiff’s attorney and was again returned *516 by defendant’s attorney wbo stated that the check did not comply with the terms of the option which required tender of cash or a certified check. Thereupon, plaintiff filed his bill of complaint herein praying for specific performance of the option agreement. The trial court dismissed the bill. It is well settled by the decisions that an option is a mere offer, and that acceptance thereof must be made within the time allowed or the optionee’s rights thereunder will be lost. It is also apparent that substantial compliance with the terms of the option is not sufficient to constitute an acceptance of the offer. “Compliance with its terms is minutely required.” Olson v. Sash, 217 Mich. 604. “An option is but an offer, strict compliance with the terms of which is required; acceptance must be in compliance with the terms proposed by the option both as to the exact thing offered and within the time specified; otherwise the right is lost.” Bailey v. Grover, 237 Mich. 548. See, also, Nu-Way Service Stations, Inc., v. Vandenberg Bros. Oil Co., 283 Mich. 551. In order that plaintiff comply with the terms of the option, it was necessary that he tender the agreed amount either in cash or by certified check prior to the expiration of the time specified. He did neither, but instead thereof, tendered a cashier’s check. As exact compliance with the terms of the option agreement was necessary, plaintiff cannot prevail unless we are to hold that a cashier’s check and a certified check are identical. This, of course, cannot be held in the face of obvious distinctions. For a definition of a certified check, see 9 C. J. S. p. 787, § 371. As to cashier’s checks, see 10 C. J. S. p. 409, § 5; Polotsky v. Artisans Savings Bank, 37 Del. 151 (188 Atl. 63, 107 A. L. R. 1458); State v. Tyler County State *517 Bank (Tex. Com. App.), 277 S. W. 625 (42 A. L. R. 1347); Causey v. Eiland, 175 Ark. 929 (1 S. W. [2d] 1008, 56 A. L. R. 529). By tendering the cashier’s check drawn upon The Detroit Bank, plaintiff was offering an instrument upon which the issuing hank alone was liable. The agreement called for and contemplated a check drawn by plaintiff and certified at his request, which would have given defendant the advantage of being able to rely upon the primary liability of the certifying bank as well as the liability of the maker of the check, who would not he discharged by a certification obtained at his request. Railway Express Agency, Inc., v. Thomas, 5 Fed. Supp. 345. The distinction is important, and in view thereof we must hold that plaintiff’s tender was insufficient. The result reached is not affected by reason of the fact that The Detroit Bank was a going concern at the time the cashier’s check was issued and tendered, and continued, as the record shows, to conduct business thereafter. Plaintiff also contends that by reason of the surrounding circumstances his deed to defendant should be construed as a mortgage. We are unable to see any substantial distinction between the facts of the instant case and those involved in Daniels v. Johnson, 24 Mich. 430, where a similar claim was made and disallowed. Decree affirmed, with costs to defendant. Wiest, C. J., and Bushnell, Sharpe, Potter, North, and McAllister, JJ., concurred. Btjtzel, J., did not sit.