Tbis case presents only tbe question wbetber, upon all tbe evidence, viewed in its most favorable aspect for tbe plaintiff, there was any evidence sufficient to support a verdict for tbe plaintiff upon tbe issues necessary to bis recovery.
Tbe defendant offered no testimony, and bis allegations that present an affirmative defense are not material to tbis discussion further than as bis explanation of transaction.
The option in tbe instant case is under seal and extends sixty days from tbe date. It is a continuing offer to sell for tbe period named- — • sixty days. We find in tbe instant record sufficient evidence upon which tbe jury may find that tbe plaintiff gave notice to defendant of bis acceptance of tbe terms of tbe option and of bis readiness, willingness and ability to perform it on bis part.
Tbe option under seal required no consideration to support it. Of course, tbe recital of a consideration in tbe contract is not conclusive as to tbe consideration further than tbe contractual nature of tbis recital extends. Tbis recital is contractual that a consideration exists sufficient to support tbe contract. Harrell v. Watson, 63 N. C., 454; Mordecai’s Law Lectures, 931; Minor’s Institutes, Vol. 3, Part 1, 139; Watkins v. Robertson, 105 Va., 269; Willard v. Tayloe, 75 U. S., 557, 19 L. Ed., 501; O’Brien v. Boland, 166 Mass., 481; Weaver v. Burr, 31 W. Va., 736; McMillan v. Ames, 33 Minn., 257. In Thomason v. Bescher, 176 N. C., 622, Hoke, J., quoting from Pomeroy on Contracts, says:' “If tbe unilateral contract is sealed and tbe common-law effect of tbe seal has not been taken away or changed by statute, it appears that the promissory offer contained in tbe writing cannot be recalled before tbe time for acceptance has expired.” 9 Cyc., 287.
It appears from tbis latter case that tbis rule is absolute, and that tbe defendant will not be beard to dispute tbe existence of a sufficient consideration to support such a contract when tbe action is at law for damages, as in tbe instant case. However, when tbe suit is in equity for specific performance, as was tbe case in Ward v. Albertson, 165 N. C., 218, 222, the $5.00 mentioned as a consideration was held sufficient, although it bad never, in fact, been paid, because tbe vendor bad refused to accept tbe vendee’s check for same when tendered. It was, nevertheless, a sufficient consideration to support tbe contract when *613specific performance was sought. The real consideration to wbicb equity will look, regardless of form, in order to determine whether it will exercise its discretion to decree specific performance is the price promised for the land. When the acceptance and notice thereof have been given to the vendee, with readiness and ability to perform, the contract becomes bilateral and the mutual promises are the real consideration for the bilateral obligations arising therefrom. Thomason v. Bescher, supra; Alabama Ry. Co. v. Long, 158 Ala., 301; Ross v. Parks, 93 Ala., 153; Smith v. Bangham, 156 Cal., 359.
When notice is given to the defendant of plaintiff’s intention to purchase the land in controversy, and plaintiff offers to comply with the option, it thereby becomes a binding contract and the rights of the parties are fixed as set out therein. Bryant Timber Co. v. Wilson, 151 N. C., 154; Ward v. Albertson, supra; Watkins v. Robertson, supra; Thomason v. Bescher, supra; Dill v. Reynolds, 186 N. C., 296; Elvington v. Shingle Co., ante, 366.
An elaborate note collecting the authorities from many courts, fully discussing this question, is contained in 2 A. L. R., 631, immediately after the report of Thomason v. Bescher, supra.
It may be, upon a trial of this case, that the jury may not find that the plaintiff, within the life of the option, accepted the terms thereof and offered to comply therewith and was ready, able and willing to do so, but, from the evidence submitted, it appears that a jury may so find, and it was, therefore, error to dismiss as upon nonsuit. The execution of the contract' is admitted, but the defendant contends in his answer that all of the contract was not contained in the writing and that such other stipulations were made as a part thereof as would require the plaintiff to make diligent effort to sell the land and to advertise it for sale in order to bring about a speedy sale. There is no prayer for reformation, but defendant seeks by this to convert the contract into a mere incident attendant upon the creation of an agency by which the plaintiff is to have the privilege of selling and is to make an effort to sell the lands in controversy for defendant. No evidence to this effect appears, but, since the agreement is to sell the lands for the stipulated price, we now see no hurt to the defendant from the omission of such stipulations or the nonperformance of them on the part of the plaintiff, if the jury shall find that the plaintiff was ready, able and willing to comply with the contract, and so notified the defendant during the 60 days of its life.
However, it appears from the admission of the defendant that the defendant conveyed the lands in controversy on 19 September, 1923, when the option had only run half its prescribed life.. This constituted a clear breach of the contract on the part of the defendant, for he then *614voluntarily put it beyond bis power to perform tbe contract on bis part. Therefore, a tender of tbe payments, as set out in tbe option, was not necessary. In Smith v. Jordan, 13 Minn., 264, 97 Am. Decisions, 232, the Court says: “Tbe complaint shows that tbe defendants, by tbe sale of tbe logs to Daniel Howes & Co., disqualified themselves from performing tbe contract. After this, either demand or tender would have been an idle ceremony which tbe law, under such circumstances, does not require.” Newcomb v. Brackett, 16 Mass., 161; Clarke v. Crandall, 27 Barb., 73. In Laybourne v. Seymour (Minn.), 54 N. W., 941, Dickinson, J., says: “Tbe corporation thereby disabled itself from performing tbe specific obligations expressed in its written undertaking, and, hence, subjected itself at once to tbe alternative liability to answer in damages as for breach of contract. Tbe law does not require tbe doing of a useless thing, and tbe corporation having thus disabled itself to specifically perform its agreement, a demand was not necessary to convert tbe right to demand tbe goods into a right to compensation in money.” Delamater v. Miller (N. Y.), 13 Am. Decisions, 512.
If liability is denied, as in tbe instant case, by tbe statement of tbe defendant that tbe land bad been sold and by a statement that plaintiff bad no option, a formal tender of tbe purchase price is not required in order to sue for specific performance or damages. Bradford v. Foster, 87 Tenn., 4; Sharp v. West, 150 Fed. Rep., 458; McLeod v. Hendry, 126 Ga., 167, Cobb, P. J., says: “It is well settled that no tender is necessary when it would be a mere idle and useless ceremony. When one of tbe parties to a contract is unable to perform bis obligation thereunder, no tender or performance by tbe other party, who is able and willing to perform, is necessary.” In Irwin v. Askew, 74 Ga., 582, it is held: “When a contract for tbe sale of land and putting tbe purchaser in possession was broken by tbe vendor, be saying to tbe purchaser that be could not comply with its terms, tbe tender of tbe purchase money was unnecessary.”
In tbe instant case there is sufficient, evidence for tbe jury to find, if they accept plaintiff’s contentions that tbe plaintiff bad tbe-$2,500 in a check, certified by tbe bank on which it was drawn, and that tbe currency in tbe form of legal tender was available therefrom or otherwise, and tbat.be was ready, able and willing to make this payment and to give such other securities as would be necessary, including tbe procurement of either tbe amount from tbe building and loan contemplated, or such securities as would meet tbe stipulation in tbe option, to wit: “Balance, $5,000, N. B. & L.”
When it is reasonably certain that an offer to perform will be refused and that payment, or performance will not be accepted, as a general rule, tender is waived. Gaylord v. McCoy, 161 N. C., 686. A refusal *615to deliver an article sold because tbe price bad gone up makes it unnecessary to tender the price. Blalock v. Clark, 133 N. C., 306. A refusal of an offer to pay waives a formal tender. Gallimore v. Grubb, 156 N. C., 575.
If defendant bas openly refused to perform, plaintiff need not make a tender or demand before suit brought. It is sufficient tbat be is ready and willing and offers to perform in bis pleadings. Bateman v. Hopkins, 157 N. C., 470. “Tbe defendant’s positively refusing to take tbe slave, Sam, at all, dispensed with tbe necessity of a tender of bim at Hillsborough..” Mobley v. Fossett, 20 N. C., 93, citing 2 Stark. on Evidence, 778.
A denial in one’s pleading of tbe agreement sued upon constituted a waiver of tender in Martin v. Bank, 131 N. C., 121. In Smith v. Building & Loan Asso., 119 N. C., 257, where a debtor stated tbat be bad tbe money in tbe bank ready to pay, but creditor refused to receive it, it was held tbat tbe money need not'be actually produced.
It is necessary tbat contracts, when entered into under circumstances as to import mature reflection before execution upon which tbe parties have a right to depend, should not be treated lightly. Unless there are such facts existent as will relieve tbe defendant from tbe performance of tbe instant contract, and if tbe jury shall find tbat tbe same bas been at all times fully kept on tbe part of tbe plaintiff, and tbat, notwithstanding tbe defendant’s conveyance of tbe locus in quo to other parties by deed of record during tbe 60 days, tbe plaintiff offered to perform on bis part, and tbat such offer was coupled with bis ability and readiness to perform, then tbe defendant bas no just right to complain if be is required to satisfy such loss as plaintiff may have suffered on account of defendant’s inability to perform said contract.
Tbe sanctity of contracts and a certainty of their performance, or satisfaction in lieu thereof, form tbe basis of modern business transactions. Upon these, energy and property may be expended and thrift and prosperity encouraged and promoted. Tbe law does not require tbat parties who are ready, able and willing to perform a contract which bas mutual obligations arising out of tbe acceptance by tbe optionee, shall do useless and vain things 'in making tenders on their part when it is admitted tbat tbe maker of tbe option bas voluntarily disabled himself so tbat performance on bis part is no longer possible. He must be ready, able and willing, and must give timely notice thereof. No unfair advantage must be taken of tbe seller, whether be is able to perform specifically or not.
Therefore, we are constrained to bold tbat there was error in dismissing this action as upon nonsuit, and it is ordered tbat a new trial be bad, and to tbat end, let tbe judgment be
Reversed.