in? A. Yes, sir; I told him that, and he knew it before. Q. And he never said anything to you then about hurry now or at any time after that? A. No, sir. Q. Was that the only intimation that they wanted you to hurry up, down to the 4th of July? A. That was the only intimation up to the time that I saw Mr. Humphrey, about June 29th.".

Plaintiff further testified that he had a conversation with Mr. Rees in his office, in which Mr. Rees said that, so far as he was concerned, he was perfectly willing that plaintiff should have the property, but that he was overruled by others, mentioning "parties in Bel Air" and Mr. Benjamin Williams. That the secretary of the company told plaintiff that he was perfectly willing plaintiff should have the property, and that when plaintiff met Mr. Williams plaintiff said, "Ben, Mr. Rees tells me that you objected to my having that property," and Mr. Williams replied, "Why, I never made any objection." Plaintiff further proved by Mr. William T. Smith, a competent witness, that he is and was, in 1892, a resident of Wilkesbarre, Pa. That he agreed with Mr. McConkey to furnish all the money necessary to complete the payment of the money due defendant on account of plaintiff's purchase of its property, and that on July 15, 1892, he had the money ready in bank. That he would have furnished all the money necessary to pay for both defendant's tract and the Coleman tract, or if the plaintiff could not get the Coleman tract he had the money ready which was necessary to pay the balance on the defendant's tract, and would have furnished it for that purpose. That he understood that plaintiff was to have an interest in the company to be formed to work the quarry, and that some parties who lived near the plaintiff were to have an interest. He had also mentioned the matter to some friends of his own in Wilkesbarre who might also have taken an interest, but that he stood ready to take the balance of the stock, whatever it might be, and pay the balance of the price. Plaintiff further proved by Thomas Hill that he went up to defendant's quarry in January or February, 1891, at the instance of the plaintiff, to look at the land of the defendant and the tract of land adjoining, called the "Coleman Tract," with a view of furnishing a part of the money necessary to pay for the two tracts and operate the quarries; that he was met by the president of defendant and by Mr. Humphrey; that the president of defendant walked around with him, showed how the slate was gotten out, and the extent of the property, etc.; that later he called on Col. Webster to get further information, but failed to see him then; that in response to that call Col. Webster called upon him in the city, but did not find him in; that subsequently, however, he either saw Col. Webster or heard from him in regard to the profits of the concern. Plaintiff further proved by Thomas A. Hays, a competent witness, that at plaintiff's request he endeavored to interest parties to go in with plaintiff, with a view to building up a stock company to take and operate the quarries on defendant's land together with the Coleman tract; that on May 13, 1891, witness went to the quarries with Messrs. D. H. Rice, Alex. M. Fulford, and Alex. Bell; that on May 26, 1891, witness went with Messrs. John S. Hays and L. Z. Doll and Alex. M. Fulford;

that on June 22, 1891, witness went with Messrs. J. F. Griffith and Wm. J. T. Riley; that the president of the defendant met witness and his party on each trip and showed them through the whole manufacture of slate from beginning to end; that he knew why the parties had come up, and showed them around as if he were interested. Plaintiff further proved by Robert L. Jones, a competent witness, that he went with plaintiff in February, 1891, to see Governor Jackson to get him to take stock in the new company plaintiff was trying to organize; that after that witness spoke to the president of the defendant about the matter, and the president of the defendant said that he would take a certain number of shares, probably $3,000, and that Mr. Williams would take some; that the tracts which plaintiff proposed to operate with this new company were the tract owned by defendant and also the Coleman tract; that witness had a conversation with the president of defendant at defendant's quarry, and he thinks in the fall of 1891, after the president of defendant had signified his intention to take stock in the new company, and in that conversation the president of the defendant said, upon witness pointing out to him a good showing of slate, that he, defendant's president, was saving that for the new company, that in July, 1892, witness among others had agreed with plaintiff to furnish the balance of the purchase money and to take this property. Plaintiff was among the stockholders. Mr. Smith, of Wilkesbarre, was to furnish most of the money. That witness talked very often with the president of the defendant, but never heard of the negotiations between plaintiff and defendant being broken off, and never heard of plaintiff's money being forfeited, or any claim made by defendant's president that it was forfeited. Plaintiff further proved by Watson A. McLaughlin, a competent witness, that in the fall of 1891, Humphrey D. Humphrey, the manager at the quarry of defendant and one of its stockholders, told him that the defendant had sold the quarry and had received $7,000 on it in part payment from the plaintiff, and that they expected the new company might take it every day. Plaintiff also proved by the same witness that he had offered plaintiff $1,000 for his option on the Coleman tract, but that plaintiff had refused the offer. Plaintiff further proved by Stevenson A. Williams, a competent witness, that he is an attorney at law at Bel Air, Md.; that some time in the summer of 1890 he was employed to examine the title to defendant's property, and that he some months afterwards drew the deed before mentioned to plaintiff; that about the time of the execution of the deed witness examined the minutes of the defendant and found some fault with them, and Mr. Harlan then had them corrected; that witness never notified any one connected with the defendant that plaintiff had abandoned the tract and it was "off"; that plaintiff never said anything to him to that effect; that some time after the deed was executed, probably six months afterwards, witness remembered seeing Col. Webster and asking him what had become of the McConkey matter, and Webster had replied that "MeConkey was still working at it, and he hoped he would get through,

that the company felt safe because they had $7,000 in hand, and they could forfeit that whenever they wanted to; that he did not give witness to understand at all that it had been forfeited. On the contrary, witness understood that he was anxious for Mr. McConkey to succeed with it; quite anxious that he should succeed in organizing a company that could pay up the balance of the money. Plaintiff then offered the minute book of the defendant and read therefrom the following minutes:

"Harford County, June 3rd, 1890.

"The board of directors met. Present: Richard Rees, president; John Humphrey, secretary; Benjamin Williams; and Edwin H. Webster. The president and secretary reported that they had, on April 19th, 1890, closed an option with Charles R. McConkey, of York county, for the sale of the whole slate quarry, fixtures, and machinery at and for the sum of $65,000.00,-for a consideration of $2,000.00 theretofore paid in cash, $5,000.00 to be paid within 30 days from April 7th, 1890; the option to stand for six months from said 7th April, 1890, within which time $28,000.00 additional is to be paid in cash, and upon a satisfactory deed being furnished by the company a mortgage for $30,000.00 is to be given for the balance of the purchase money to run 5 years, interest at 5 per cent.. payable semiannually, with right to said McConkey or his assigns to anticipate the payment of any part thereof, and if said option is not availed of all payments made to be forfeited to the company. And that the said McConkey has since paid the said sum of $5,000.00. Upon motion of Edwin H. Webster the action. of the president and secretary was ratified, and the president was directed to report the facts to the stockholders' meeting. The directors' meeting then adjourned. Richard Rees, Prest.

Extract from minute book:

"John Humphrey, Secretary."

"Harford County, June 3rd, 1890.

"The adjourned annual meeting of the stockholders of the Peach Bottom Slate Company, of Harford county, was held this day at the company's office at the quarries. Benjamin Williams in the chair, and John Humphrey, secretary. The secretary and treasurer submitted the annual statement of the affairs of the company, which was directed to be recorded. The president reported that an option had been closed with Charles R. McConkey for the sale of the whole quarry, machinery, and tools, at $65,000.00 (all other assets of the company were reserved), said option to stand for six months from April 7, 1890, and that $7,000.00 had been paid on account, all payments to be forfeited if the option is not availed of as set out in the agreement which was read to the meeting. Upon motion of Edwin H. Webster the action of the directors was ratified. Upon motion, the stockholders' meeting was adjourned.

Extract from minute book:

"Benjamin Williams, Chairman. "John Humphrey, Secretary."

"Harford County, December 2nd, 1890. "General stockholders' meeting of the Peach Bottom Slate Co., of Harford county, was held this day. Mr. Webster then offered the following resolution, which was unanimously adopted: Resolved, that the sale of our slate quarry. its real estate and machinery thereon, as heretofore made by the board of directors to Charles R. McConkey, and according to the terms heretofore reported, be approved and ratified, and that the board of directors are hereby instructed to make a proper deed to said McConkey, upon his payment of the balance of the cash payment now due and the execution of a mortgage for the balance of the purchase money. Upon motion of Edwin H. Webster, the stockholders' meeting adjourned until Tuesday, December 23rd, 1890. "John Humphrey, Secretary."

Plaintiff further proved that these were the only minutes in which the name of Mr. McConkey or the matter of any business transaction

in which he was interested were found. The defendant then offered evidence to support the issues on its part joined. Both plaintiff and defendant asked the court for certain instructions to the jury, which are set forth in the record, but which, in the view that we take of this case, it will not be necessary for us to consider.

Did the court below err in directing the jury to return a verdict for the defendant? We think that the contract of April 19, 1890, was an option for the sale of defendant's property, which gave the plaintiff six months from April 7, 1890, in which to complete the purchase on the terms therein set forth. All the agreements and the extensions thereof made prior to said contract by the parties thereto relative to the property mentioned therein were then null and void, and the new agreement of that date was entered into. By it the plaintiff was to pay $65,000 for the property, as follows: $2,000 in hand, $5,000 within one month from April 7, 1890, $28,000 upon the execution and delivery of the deed, and $30,000 to remain as a first mortgage on the property, but with the understanding that the $2,000, which had been paid under former contracts, and the $5,000 then provided for, were to be considered as payments for the privilege of the option, that were to be forfeited to the defendant in case the plaintiff failed to avail himself of the option to purchase by the time mentioned in said agreement. That this was the understanding between the parties to the contract is clearly shown by the papers signed by the plaintiff of the same date as the option, but shown by the testimony to have been executed a few days later. It was under this contract the money was paid by plaintiff, and for the violation of which by defendant he claims the right to recover in this action. The plaintiff, before October, 1890, did verbally notify the defendant that he would be ready to take the property, but he took no step that would bind him to do so, and the matter still remained optional with him. He had the title examined and the deed prepared, which was duly executed by defendant and ready for delivery in December, 1890. The defendant's stockholders duly ratified the contract of sale and directed the deed to be delivered upon the payment of the balance of the cash payment and the execution of a mortgage for the balance of the purchase money. But the plaintiff at this time was unable to comply with the terms of his contract for the reason that "some of the parties who were to go in had dropped out." Certainly the defendant to that time had done everything that it was required by the agreement to do, and it was then ready to deliver the deed, and would have done so but for the plaintiff's failure to pay the purchase money then due. It is insisted that the defendant extended the time in which the plaintiff could purchase the property. was such extension made? Certainly not by written agreement nor by any verbal arrangement that was to remain in force for any defi-. nite time. The plaintiff claims that when he notified the defendant ⚫ that he would be ready to take the property the effect was to create a contract of sale, which was recognized by defendant and admitted by its stockholders in general meeting, as shown by the minutes thereof, which, it is said, also satisfy the requirements of the statute

How

i

of frauds. We do not find that the facts justify such a conclusion. The plaintiff at no time contracted to take the property. He did not agree to avail himself of the option by the notification he made, unless the parties with whom he was negotiating provided the money. If they dropped out he was to go with them. The fact that the defendant, acting by its officers, did encourage the plaintiff in his efforts to induce others to take the place of those who had withdrawn their subscriptions, and did assist him in his endeavors to consummate his scheme of purchase, while going to show defendant's willingness to sell and convey the property, after the expiration of the time limit fixed in the option, must not be construed as binding it in such a manner as to prevent it from withdrawing its indulgence at any time it saw proper, and treating the option as inoperative because of the plaintiff's failure to comply with it. By the plaintiff's own evidence it is shown that he was notified by defendant, considerably over one year after the deed had been executed, that the matter relating to the option and purchase must be closed, at which time he suggested the 15th day of July, 1892, as the day he would be ready, to which the defendant assented. It is plain that plaintiff did not tender himself ready on that day to take the property mentioned in the agreement of April 19, 1890, and it is equally clear that when he did (on the 13th day of September, 1892) tender himself ready to take it the defendant was under no obligation to convey the property to him. On this point the court below, in charging the jury, used the following language, which we quote approvingly as applicable to this case:

"The defendant replied that there was not any agreement then in force. It may be admitted that in an ordinary contract of purchase and sale, in which seven thousand dollars had been paid on account of a purchase amounting to sixty-five thousand dollars, that under these circumstances, which the plaintiff's evidence tends to prove, the money paid on account of such a contract could be recovered back. But this is not an ordinary contract, for by its express terms the seven thousand dollars was forfeited when the plaintiff failed to complete his purchase in December, 1890. The only meaning of the words 'to avail himself of his option to purchase the property,' must be to pay for it according to the stipulation as to the terms of payment reasonably construed. The reasonable time for payment expired when the deed was ready in December, 1890, and after that he was entitled to further time only by the indulgence of the defendant, an indulgence which could be withdrawn, and which I think must be held to have been withdrawn by the notice that the transaction must be closed by July 15th."

We conclude that, on the facts in evidence and the law applicable to them, it was proper for the court to direct the jury to return the verdict it did. It is not necessary that we consider the instructions tendered and refused other than as they have been disposed of by the conclusion just announced. The judgment of the court below is affirmed.