LEVY v. HOFFMAN, 235 F. 46

PER CURIAM. We may assume, without deciding, that clause third of the contract, by its reference to procuring a purchaser, meant procuring some one who was likely to buy; that Greene was interested to this extent within the 10 days; that Stallo acted in good faith in deciding that a purchaser had been procured under this paragraph; and that, therefore, the 60-day extension granted by Stallo, and running to December 19th, was valid.

We cannot, however, treat the contract, as plaintiff would have us do, as divisible into two—one an option contract for the sale to Levy at a stated price whereby Levy would make no profit unless and until he sold, and the other an agency contract, whereby Levy became a mere broker who earned, as a commission, everything above the stated price received from the purchaser he found, and whose duty was done when he brought together his principal and his purchaser.

We think it very clear, whether or not we resort to the aid of surrounding circumstances and the later conduct of the parties, that the agreement, taken all together, was of a unitary character and was an option contract contemplating that Levy or his assignee should buy the property, and that he should have, as his profit, what he could make upon a sale of the option or a resale of the property. The existence of the custom pleaded may be granted, but it does not help the plaintiff.

The authorities relied upon to show the force of such a custom all say—what is obvious—that the custom operates to give additional time under ah option contract or'a sales contract only in cases where the contract does not itself make specific provision on the same subject; but in this contract, there is such specific provision.

It says, in effect, that if within 10 days Levy procures a satisfactory purchaser—himself or another—then he may have 60 days more in which “to consummate the sale.” No reason is suggested why this phrase “to consummate the sale” does not cover and include everything which may be necessary to convert the prospective purchaser, who is contingently willing to buy, into the satisfied purchaser who does buy. Examination of title, examination of property, financial arrangements, corporate meetings—all these things necessarily precede the consummation of the sale.

Any other construction of this contract implies that, after the prospective purchaser has been interested, during the 10 days, and then after, during the 60 days, everything has been completed and the sale has been “consummated,” the' purchaser shall still have a reasonable time to decide whether property and title are as represented. Its words do not permit such an

interpretation. When the 60-day provision of the contract has been thus construed, it is the end of the case. Time was of the essence of the contract, as of every option contract, and Levy does not claim that he procured a purchaser who, within the 60-day contract period, consummated the sale or was ready to consummate the sale. Greene’s offer was conditional on á further extension of time, to January 17th, in which to make up his mind. He never offered to take up the subject of purchase, except upon that condition; and to that extension of time, Hoffman never assented and Stallo had no power to consent.

We observe further that Hoffman’s option offer was in an alternative form, reserving the right to elect whether he would sell property or capital stock, and Greene’s contingent acceptance covered only one alternative. Even if it may be said that Hoffman waived this objection to the Greene proposition, he did not waive the time limit. There are other obstacles in the way of recovery, but it is not necessary to consider how serious they may be.

We have carefully reviewed the elaborate discussion of the case by counsel for plaintiff in error, but we find nothing to make us doubt the correctness of the conclusion we have stated. The judgment is affirmed.