National Bank, Ronceverte." And again, in his letter of the same date he says, "As I have but a few days in which to make my decision I decided to wire you to forward option at the price named and as soon as said paper arrives I will make investigation of your property and write you immediately on my return to Ronceverte." This language conclusively disposes of any possible contention that a formal option contract was not contemplated, for it will be observed that Mr. Couch, in his letter, proposes that "as soon as said paper arrives" he will make investigation of the property, etc. Under this state of affairs, and the information afforded by this letter, Mr. McCoy could be under no apprehension that Mr. Couch would place himself at any disadvantage by expending any money in the examination of this property or the purchase of contiguous property until he received the paper referred to in his letter. It will be observed that Mr. McCoy never offered to send this option agreement to Ronceverte or elsewhere, or to deliver it elsewhere than at the usual and ordinary place of delivery of such contracts, or until the consideration therefor had been paid. The vendor's domicile, residence, or place of business is, in law, the proper place for payment for and delivery of a contract or deed; and an acceptance by a proposed purchaser, payable or deliverable elsewhere, is not the unconditional acceptance required to make a binding contract. Such acceptance amounts to an alteration of the proposal, and is equivalent to a rejection; and, unless the alteration so made is thereafter expressly assented to by the proposer by word or act, it cannot convert the original offer into a completed contract.

In Sawyer v. Brossart, 67 Iowa, 678, 25 N. W. 876, 56 Am. Rep. 371, the offer was as follows: "Yours at hand. You can have that building for $3500 and the two for $5000. Let me hear from you at once." Plaintiff replied by telegraph: "Accept your offer for two buildings at $5000. Money at your order at First National Bank here. Telegraph me immediately when to expect deed." Sawyer lived in Iowa, and Brossart in California. Held, that the acceptance by Sawyer was not an acceptance of the offer as made, the court saying (page 680 of 67 Iowa, page 877 of 25 N. W. [56 Am. Rep. 371]), "When Brossart learned that he had offered the property at less than its value, or in any state of the case, it was his right to stand upon a strict acceptance of his offer;" emphasizing the point that it matters not what the motive may be influencing the defendant. To the same effect are Robinson v. Weller, 81 Ga. 704, 8 S. E. 447; Langellier v. Schaefer (Minn.) 31 N. W. 690: Greenawalt v. Este, 40 Kan. 418, 19 Pac. 803; Gilbert v. Baxter, 71 Iowa, 327, 32 N. W. 364; N. W. Iron Co. v. Meade, 21 Wis. 475, 94 Am. Dec. 557; Baker v. Holt, 56 Wis. 100, 14 N. W. 8; Batie v. Allison, 77 Iowa, 313, 42 N. W. 306.

This last case was one for specific performance, in which the offer was couched in the following language: "Will give warranty deed as title now stands as $8 per acre net to me." Plaintiff replied: "We accept your offer without qualification. * Notify us when and where to send money. * *" The court below sustained a demurrer to the petition, and on appeal the court said:

*

"The offer expressed nothing as to time or place of payment, and, had the acceptance been without expression on that subject, the law would fix the time and place; but the acceptance is upon condition that the defendant would 'notify us when and where to send the money.'" See, also, Maynard v. Taylor, 53 Me. 511; Esmay v. Gorton, 18 Ill. 483; Dejonge v. Hunt (Mich.) 61 N. W. 341; Eliason v. Henshaw, 4 Wheat. 225, 4 L. Ed. 556.

These authorities, collated from such varying sources, abundantly show the uniform doctrine of the courts as to the necessity for an unqualified acceptance of an offer in order to convert said offer into an agreement.

It is manifest that under ordinary circumstances the telegram and letter of Mr. Couch would impose no obligation whatever upon Mr. McCoy to execute and send to the First National Bank of Ronceverte the paper in question. The pleader who prepared the bill in the case recognized this fact, and attempted to bridge the difficulty by an allegation that before this time he had arranged with the officers of said bank that, should an option for these lands be there received, at a price which was at all reasonable, they should pay to Mr. McCoy $50 for the same out of funds deposited there by the plaintiff, and that he had written to Mr. McCoy, informing him of this arrangement. This might all be true, but it imposed no obligation upon Mr. McCoy to assent to any such arrangement, and there is no allegation in the bill that he did assent to it, or ever agreed to deliver any contract until paid for it. The pleader further states in the bill that Mr. Couch's letter of March 3d, asking that the option be forwarded, contains a statement "informing said McCoy that said sum ($50) was deposited at said bank, and would be forwarded by it on receipt of option." An examination of the letter itself, a copy of which is exhibited with the bill, discloses that the pleader was in error as to this, for no such statement is contained in the letter, nor is any reference whatever made to any arrangements for payment for the option. But even if such statement had been made in the letter, could it change the rights of the parties? Undoubtedly not. Mr. McCoy was entitled to payment for his option at the time and place of its delivery, which latter, in the absence of clear agreement to the contrary, would be at his residence, at Clinton, in the state of Iowa. If an acceptance of an offer to sell, qualified by making the consideration payable or deliverable elsewhere than at the residence or place of business of the vendor, is not a good acceptance, and may be treated as a rejection of the offer, how much more true is this of an offer of an option, which requires a consideration paid to support it, and which, all the authorities concede, may be withdrawn at any time, even though complete in form and signed by the vendor, unless a consideration has been paid for it, or the agreement be under seal, which imports a consideration. Hawralty v. Warren, 18 N. J. Eq. 124, 90 Am. Dec. 613; Borst v. Simpson, 90 Ala. 373, 7 South. 814; Sutherland v. Parkins, 75 Ill. 338; Conner v. Renneker, 25 S. C. 514. And even in the latter case, upon a suit for specific performance, the want of consideration may be shown notwithstanding the seal. 1 Pom. Eq.

§383; 3 Pom. Eq. § 1293; Graybill et al. v. Brugh (Va.) 17 S. E. 558, 21 L. R. A. 133, 37 Am. St. Rep. 894.

The United States Supreme Court has frequently held that, exercising the discretion vested in courts of equity in cases for specific performance, it will not be decreed "if it be doubtful whether an agreement has been concluded or is a mere negotiation,” or “unless the proof is clear and satisfactory both as to the existence of the agreement and as to its terms." Dalzell v. Dueber Watch Co., 149 U. S. 315, 13 Sup. Ct. 886, 37 L. Ed. 749; Carr v. Duval, 14 Pet. 79, 10 L. Ed. 362; Nickerson v. Nickerson, 127 U. S. 668, 8 Sup. Ct. 1355, 32 L. Ed. 314; Hennessey v. Woolworth, 128 U. S. 438, 9 Sup. Ct. 109, 32 L. Ed. 500.

In Mississippi, etc., S. S. Co. v. Swift, 29 Atl. 1063, 41 Am. St. Rep. 545, 86 Me. 248, it was held that when parties enter into a general contract, and the understanding is that it is to be reduced to writing, or, if it be already in a written form, that it is to be signed before it is to be acted upon or to take effect, it is not binding until it is so written or signed, and that the burden of proof is on the party claiming the completion of the contract before the written draft is signed. In the case at bar it is perfectly clear that a formal option was contemplated by both parties, and in his letter of March 3d Mr. Couch says, "And as soon as said paper [the option] arrives I will make investigation of your property and write you immediately on my return to Ronceverte"; showing clearly that he was not relying on any existing option contract, but was looking to a formal option to be yet executed. It is also evident from Mr. McCoy's letter of March 3d that he had in mind the preparation of a formal option, and did not intend to be bound until such a paper was executed. In one of his letters of March 3d he says, "If the option on that basis is desired please inform me to that effect." To these letters explanatory of his telegram he never had any reply until after he had withdrawn his offer on March 8th. In the case of Mississippi, etc., S. S. Co. v. Swift, supra, it was further held that:

"When correspondence indicates that a formal draft of a contract was in the minds of the parties, or at least in the mind of the party sought to be charged, as the only authoritative evidence of a contract, and that he did not have or signify any intention to be bound until the written draft had been made and signed, he is not bound until such draft is duly made and signed."

And in Wardell v. Williams, 62 Mich. 50, 28 N. W. 796, 4 Am. St. Rep. 814, it was held that:

"Either party has the right to withdraw from pending negotiations for the sale of real property, where no consideration has passed, no rights intervened. and the conditions of the parties have not changed."

From all of these considerations I conclude that, from the facts shown in the bill, it is not sufficiently shown that a valid option contract was entered into between the parties.

I conclude that the demurrer must be sustained, and the bill dismissed. A decree may be prepared in accordance with this opinion.

DOLL v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES. (Circuit Court of Appeals, Third Circuit. June 12, 1905.)

No. 20.

1. INSURANCE-APPLICATION-WARRANTIES.

Where a life insurance policy provided that it was granted in consideration of the written and printed application for the policy, which was made a part of the contract, and that the policy and application, taken together, constituted the entire contract, which could not be varied except in writing by one of specified executive officers of the society, and the application contained a provision over insured's signature that all statements and answers therein were warranted to be true, representations with reference to insured's family history as to consumption, and that insured had not had any serious illness within two years prior to the signing of the application, were warranties.

.

[Ed. Note. For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 558570.]

2. SAME-BREACH.

Where, in an application for life insurance, insured warranted that there was no history of consumption in his family, and that he had had no serious illness within two years prior to the date of the application, evidence that insured's sister had died of consumption prior to the date of the application, of which fact insured had knowledge, and that within two years before the date of the application insured had repeated profuse hemorrhages from the stomach for nearly a week, and was treated by a physician for 30 days, who testified that his illness was serious, established a breach of such warranties.

[Ed. Note. For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 688693.]

3. FOREIGN LAWS-REMEDY-APPLICATION.

A foreign statute of a state where a life insurance contract was made, prohibiting a physician from disclosing any information that he might have acquired in attending any patient in a professional capacity, which information was necessary to enable him to prescribe for such patient as a physician, etc., affected the remedy only, and hence was inapplicable in an action on the policy in a federal court sitting in another state.

4. SAME.

Rev. St. U. S. § 721 [U. S. Comp. St. 1901, p. 581], providing that the laws of the several states, except where otherwise provided, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply, does not apply to an objection to the competency of a physician to testify under a disqualifying statute of a foreign state where the insurance contract sued on was executed.

In Error to the Circuit Court of the United States for the District of New Jersey.

Spencer Weart, for plaintiff in error.

Gilbert Collins, for defendant in error.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

GRAY, Circuit Judge. The case before us comes up on writ of error to the United States Circuit Court for the District of New Jersey. Suit was brought by the plaintiff below, who is plaintiff in error, against the Equitable Life Assurance Society, defendant in error, in the Supreme Court of the state of New Jersey, upon a

138 F.-45

policy of life insurance, issued by the defendant to William Doll, husband of the plaintiff, for the sum of $5,000. Thereafter, the said suit was removed, at the instance of the defendant, to the Circuit Court of the United States for the District of New Jersey. Application for the policy was made by the plaintiff's husband on October 3, 1902, and he died on the 11th of May, 1903.

The plaintiff's declaration avers generally the performance of all conditions precedent on the part of the insured to be performed. A statute of the state of New Jersey provides that "either party to an action may aver performance of conditions precedent generally; and the opposite party shall not deny such averment generally, but shall specify in his pleading the condition precedent, the performance of which he intends to contest." The defendant pleaded the general issue, with notice of two special defenses, setting forth in detail certain conditions precedent, the performance of which the defendant intended to contest. Counsel for plaintiff in error, in his first assignment, contends that the specification of such conditions precedent, by way of notice of special matter to be given in evidence at the trial accompanying a plea of the general issue, is not such a pleading as is required by this statute. We think, however, this contention is without merit. The plea of the general issue, with notice, as above stated, is technically and in substance a pleading within the meaning of the New Jersey statute. Such a plea of the general issue, with notice of special matter, is authorized by the law of the state as a substitution for a special plea in bar. The special matter, as set out, is part of the pleading. There was no error in holding that the defendant had sufficiently complied with the requirements of the statute referred to.

At the conclusion of the testimony on both sides, upon motion of defendant's counsel, the jury were directed to find a verdict for the defendant, which action of the court below is here assigned for error. The two special matters of defense, of which notice was given with the plea of the general issue, were, (1) that the insured, William Doll, had warranted that there was no history of consumption in his family; i. e. among his parents, brothers or sisters, uncles or aunts, while the truth was that a sister had died of consumption; (2) that the insured, William Doll, had warranted that he had not had any serious illness, which was false, because he had had an attack of hemorrhage of the stomach within two years of the date of his application.

On the first page of the policy, as referred to by the court below in its opinion, is this language: "The privileges and conditions stated in the second and third paragraphs hereof form a part of this contract, as fully as if recited at length over the signatures hereto affixed," and on the third page, in addition to the statement of the money consideration, is the following: "This assurance is granted in consideration of the written and printed application for this policy, which is hereby made a part of this contract;" and at the close of the third page occurs this language: "This policy and the application therefor, taken together, constitute the entire contract, which cannot be varied, except in writing, by one of the fol