An option is a term of business usage rather than of strictly legal nomenclature, and has frequently been used to include indiscriminately both binding conditional contracts and mere unsealed offers without consideration. Such an offer has of course no binding force either at law nor in equity; 6 but an option for which consideration has been given is both an offer and also a unilateral contract.7 The only difference in the two kinds of offers is that the former kind is revocable. In either case when the offer is seasonably accepted a new bilateral contract arises, and it is, strictly speaking, this contract which is specifically enforced.8 Failure to recognize this has sometimes caused confusion. It is indeed abundantly settled that if the option was given for valid consideration the acceptor may enforce it;9 and it is not necessary that the consideration shall have been given exclusively for the option. It is enough if it is one term of a contract for which consideration was given. Thus an option in a lease or in another instrument given contemporaneously with a lease and as part of the same transaction, may be specifically enforced.10 Even though no consideration was given for the option it is, nevertheless, enforceable if under seal in a jurisdiction where seals still retain their common law significance.11 The enforcement of such an option is no exception to the rule that equity will not enforce a contract without consideration, for, as has been said, it is the contract created by the acceptance of the option which is enforced, and it might as well be said that no contract which originated in an offer and a subsequent acceptance could be enforced as to deny enforcement to a contract arising from the acceptance of an option. It is true, that if an attempt has been made to revoke the offer contained in an option for which consideration has been given or which is under seal, to deny effect to the revocation and treat the offer as irrevocable is equivalent to a preliminary specific performance, but it is not effected by a decree in equity. A court of law as well as a court of equity assumes the irrevocability of such offers.12 An option for which no consideration is given, and which is not under seal is subject to the same rule if accepted before revocation or expiration by lapse of time, for every offer is an option, revocable or not as the case may be, for the time therein stated, or if no time is stated for a reasonable time; and cases which hold that a contract based on an option is not specifically enforceable,18 because the option at the outset lacked mutuality are suggesting a test which is not only intrinsically unreasonable, but is destructive of the right to enforce any contract based on acceptance of a continuing offer.
5 In Forrer v. Nash, 35 Beav. 167, Lend Romffly, M. R., said: "It is to be observed that there was no mutuality, for the defendant oould not have had a decree against the plaintiff to perform the contract, because the court does not attempt to compel a person to do what is impossible. The plaintiff had no power to grant the lease, and neither the court nor the defendant oould have compelled him to do so." In Blackett p. Bates, 1 Ch. App. 125, Lord Cranworth said, in refusing specific performance, that a court of equity "does not grant specific performance unless it can give full relief to both parties. Here the plaintiff gets at once what he seeks,-the lease; but the defendant cannot get what he is entitled to, for his right is not a right to something which can be performed at once, but a right to enforce the performance by plaintiff of daily duties during the whole term of the lease. The court has no means of enforcing the performance of those duties." In Strang v. Railroad Co., 101 Fed. 511, 516, 41 C. C. A. 474, Simonton, J., said: "The bill, in purpose and substance, is for the specific performance of a contract to build the road. If the court could undertake to order the defendant, on its part, to fulfill all the parts of its contract, it must order the plaintiff, on his part, to fulfill his contract: that is, to build the road. A contract to be specifically performed, must be mutual." See also Blanton v. Kentucky Distilleries, etc., Co., 120 Fed. 318, affd. 149 Fed. 31, 80 C. C. A. 343; Roller v. Weigle (App. Dist. Col.), 261 Fed. 250.
6 See supra, Sec.55.
7 See supra, Sec.61.
8 Hamilton College v. Roberts, 223 N. Y. 56, 119 N. E. 97.
9 Lawes v. Bennett, 1 Cox Ch. 167; Willard v. Tayloe, 8 Wall. 557, 19 L.. Ed. 501; Hoogendorn v. Daniel, 178 Fed. 765, 102 C. C. A. 213; Dun-lop v. Baker, 239 Fed. 193,152 C. C. A. 181; Ross v. Parks, 93 Ala. 153, 8 So. 368, 11 L. R. A. 148, 30 Am. St. Rep. 47; Meyer v. Jenkins, 80 Ark. 209, 96 S. W. 991; Stanton v. Singleton, 126 Cal. 657, 59 Pac. 146, 47 L. R. A. 334; Smith v. Bangham, 156 Cal. 359, 104 Pac. 689, 28 L. R. A. (N. S.) 522; Carter v. Love, 206 111. 310, 69 N. E. 85; Corbett v. Cronk hite, 239 111. 9, 87 N. E. 874; Hamilton v. Hamilton, 162 Ind. 430, 70 N. E. 535; Thomas v. Gottlieb, etc., Brewing Co., 102 Md. 417, 62 Atl. 633; Boston, etc., R. Co. v. Rose, 194 Mass. 142, 80 N. E. 498; Solomon Mier Co. v. Hadden, 148 Mich. 488, 111 N. W. 1040, 118 Am. St. Rep. 586; Warren v. Castello, 109 Mo. 338, 19 S. W. 29, 32 Am. St. Rep. 669; Tebeau v. Ridge, 261 Mo. 547, 170 S. W. 871, L. R. A. 1915 C. 367; Watkins v. Youll, ,70 Neb. 81, 96 N. W. 1042; White v. Weaver, 68 N. J. Eq. 644, 61 Atl. 25; Hamilton College v. Roberts, 223 N. Y. 56, 119 N. E. 97; Fox v. Hawkins, 150 N. Y. App. D. 801, 135 N. Y. S. 245; Bryant Timber Co. v. Wilson, 151 N. C. 154, 159, 65 S. E. 932,
934, 134 Am. St. Rep. 982; Gilbert v. Port, 28 Oh. St. 276; People's St. R. Co. v. Spencer, 156 Pa. St. 85, 27 Atl. 113, 36 Am. St. Rep. 22; Bradford v. Foster, 87 Tenn. 4, 9 S. W. 195; Watkins v. Robertson, 105 Va. 269, 54 S. E. 33, 5 L. R. A. (N. S.) 1194, 115 Am. St. Rep. 880; Armstrong v. Maryland Coal Co., 67 W. Va. 589, 69 S. E. 195; Wall v. Minneapolis, etc., R. Co., 86 Wis. 48, 56 N. W. 367; Andrews v. Galon, 38 Can. Sup. Ct. 588. In Kennerley v. Simonds, 247 Fed. 822, the court declined to give an injunction restraining an author from publishing elsewhere, who as part of a contract had given the plaintiff the "refusal" of his later work.
10 Willard v. Tayloe, 8 Wall 557 19 L. Ed. 501; De Rutte v. Muldrow, 16 Cal. 505; Soper v. Myers, 45 App, Dist. Col. 286; Hayes v. O'Brien. 149 111. 403, 37 N. E. 73, 23 L. R. A. 555; Stansbury v. Fringer, 11 Gill. & J. 149; Murphy v. Anderson, 128 Minn. 106, 150 N. W. 387; Tebeau v. Ridge, 261 Mo. 547, 170 8. W. 871, L. R. A. 1915 C. 367; McCormick v. Stephany, 61 N. J. Eq. 208, 48 Atl. 25; Thomason v. Smith, 88 N. J. Eq. 476,103 Atl. 25; Carney v. Pendleton, 139 N. Y. App. D. 152, 123 N. Y. S. 738; Corson v. Mulvany, 49 Pa, 88, 88 Am. Dec. 485.