Am. Agricultural Chem. Co v. Crawford

• Decision Date: 23 November 1904
• Citation: 48 S.E. 868,103 Va. 171
• Court: Virginia Supreme Court
• Parties: AMERICAN AGRICULTURAL CHEMICAL CO. v. KENNEDY & CRAWFORD.

48 S.E. 868

103 Va. 171

AMERICAN AGRICULTURAL CHEMICAL CO.

v.KENNEDY & CRAWFORD.

Supreme Court of Appeals of Virginia.

Nov. 23, 1904.

contracts—mutuality of engagement.

1. A contract by which plaintiff agrees to sell fertilizer, and defendants agree to buy, having no other consideration than their mutual promises, and providing that plaintiff may cancel it at any time, is void, for lack of mutuality of engagement, so that defendants may refuse to purchase, though plaintiff manufacture's the fertilizer, and puts it in sacks marked for them, and makes tender thereof.

Appeal from Circuit Court, Augusta County.

Action by the American Agricultural Chemical Company against Kennedy & Crawford. From a judgment sustaining a demurrer to the declaration, plaintiff appeals. Affirmed.

J. R. Fishburne and Jos. A. Glasgow, for appellant

A. C. Braxton, for appellee.

BUCHANAN, J. The American Agricultural Chemical Company instituted its action of assumpsit against J. A. Kennedy and W. A. Crawford, partners doing business under the firm name of Kennedy & Crawford, to recover damages for the alleged breach of an agreement not under seal.

The plaintiffs cause of action, as set forth in the third count of the declaration—the only count relied on—is as follows:

"The American Agricultural Chemical Company, a corporation, complains of J. A. Kennedy and W. A. Crawford, partners doing business and trading under the firm name and style of Kennedy & Crawford, of a plea of trespass on the case in assumpsit, for this, to wit:

"3rd Count. That heretofore, to wit, on the 14th day of March, 1902, in consideration that the plaintiff, at the request of the defendants, would sell and furnish to the said defendants certain fertilizer, at and for a reasonable compensation, hereinafter set out, defendants undertook, and then and there promised and contracted in writing with the said plaintiff, In the words and figures following, to wit:

" 'March 14, 1902.

" 'To Messrs. Kennedy & Crawford, Staunton, Augusta County, Va.: We hereby agree to ship you under the conditions and stipulations hereinafter named, and subject to the approval of the Home Office, the following fertilizers at prices and terms named below.

" 'The terms and conditions of this contract are as follows, and the prices named below are net to us in 200-lb. bags.

                ------------------------------------------
                |Brands.           |Price per 2, 000 lbs.|
                |------------------|---------------------|
                |Tour brands 2-10-5|$20.85               |
                |------------------|---------------------|
                |2-8-5             |19.85                |
                |------------------|---------------------|
                |2-8-2             |17.60                |
                |------------------|---------------------|
                |1-8-1             |14.60                |
                |------------------|---------------------|
                |1-8-2             |15.30                |
                |------------------|---------------------|
                |10-2              |12.65                |
                |------------------|---------------------|
                |14                |11.65                |
                |------------------|---------------------|
                |2 1/2-12          |21.00                |
                ------------------------------------------
                

" 'Goods to be delivered by us free on board cars or steamer at Staunton, Va., in car-load lots, and you are to pay freight on all shipments.

" 'All goods ordered by you under this contract shall be settled for in full on July 1, 1902, in cash for spring, and December 1, 1902, for fall.

" 'For cash payments made prior to July 1, 1902, interest will be allowed at the rate of seven (7) per cent, per annum from dates of payments to July 1, 1902.

" 'All settlements are to be sent to us in full at the date named, and protest, demand for payment and notice of nonpayment of any notes that may have been endorsed by you and transferred to us, are hereby waived, and you also waive all homestead and other exemptions as to any obligations growing out of this contract.

" 'It is also agreed that you will hold In trust and separate, for the settlement of our account, all of said goods unsold and all currency, open accounts, notes, liens, mortgages, or other values received for goods sold.

" 'This contract is subject to suspension in case of fire, accident to our works, or other causes.

" 'We have the right to ship said goods, or any part thereof, from any factory.

" 'We reserve the right to cancel this contract at any time we may deem proper, but in the event of such cancellation the provisions of this contract shall govern the closing of all business begun thereunder.

" 'This contract, written and printed, constitutes the entire agreement, and no verbal understanding will be recognized. " 'Executed in triplicate.

" 'The American Agricultural Chemical Company,

" 'Wm. W. Baker. " *We hereby agree to take whatever fertilizers we may require for spring season 1902, not less than, as stated, tons with the privilege of taking more, if mutually agreeable, under above terms and conditions.

" 'Name—Kennedy & Crawford. "The said plaintiff further avers that although it, confiding in the said promises and undertakings and contract of the said defendants as above set out, did procure and manufacture the brands of fertilizer as above set out in said contract, and did manufacture and procure and have stamped the sacks or bags to contain said fertilizer, and were and continued ready and prepared to furnish said fertilizer, as above set out, on the terms aforesaid, and were ready and willing so to do to the said defendants during the said spring of 1902 and the said fall of 1902, and during all that time tendered and offered to furnish the said defendants said brands of fertilizer as set out, upon the terms aforesaid, of all of which the defendants during all that time had notice, yet the said defendants failed to designate or order the brands of fertilizer, which were to amount to at least four hundred tons, according to their said promises, but, on the contrary, refused and continued to refuse during the whole spring and the whole fall of 1902 to accept or order said fertilizer according to their promises, without any reasonable cause therefor whatever; the plaintiff in that behalf having performed in every particular the terms and conditions in manner and form and at the time agreed upon in said contract, and was always...