Bell v. Offutt

• Decision Date: 23 February 1874
• Parties: Bell v. Offutt. Offutt v. Hamilton.
• Court: Kentucky Court of Appeals

73 Ky. 632

Bell v. Offutt.

Offutt v. Hamilton.

Court of Appeals of Kentucky.

February 23, 1874

APPEALS FROM JEFFERSON COURT OF COMMON PLEAS.

MBARRET & BROWN, For Appellant Bell,

CITED

Sedgwick on Damages, pp. 229, 351.

Chitty on Contracts, pp. 9, 284, 289.

Parsons on Contracts, sec. 2, p. 5.

Littell's S. C. 253, Baker, & c. v. Le Grand.

3 Bibb 289, McCall v. Welsh.

1 Marsh. 586, Carter v. Woolright.

5 Dana 138, Dryden v. Lewis.

9 Dana 296, Chandler v. Robertson.

8 Dana 151, McNairy, & c. v. Bishop, & c.

3 Marsh. 418, Burch v. Young.

1 Bibb, 459, Bodine v. Wade.

CALDWELL & HARWOOD, COCHRAN & CALDWELL, For Offutt,

CITED

Story on Agency, secs. 391, 393, 269, 133.

Benjamin on Sales, 2d ed., pp. 326, 558, 559.

Story on Contracts, sec. 386.

Chitty on Contracts, 8th Am. ed., p. 211; 11th ed., pp. 94, 95, 277, 303.

Hilliard on Contracts, secs. 21, 47, pp. 605, 606; sec. 50, p. 607; sec. 74, p. 621.

Paley on Agency, 3d Am. ed., pp. 171, 210, 199, 200.

9 Dana, 292, Chandler v. Robertson.

1 Parsons on Contracts, pp. 44-47.

1 Chitty on Pleading, pp. 7, 12.

3 Graham & Waterman on New Trials, pp. 1021, 1048, 1063.

8 Johnson, 85, Smith v. Brush.

1 Kean (15 Eng. Ch'y) 729, Thomas v. Dering.

2 S. & S. 194, Holland v. Eyre.

1 Paige's Ch'y Rep. 434, Frith v. Lawrence.

4 Paige's Ch'y Rep. 17, Brisban v. Boyd.

2 Yo. & Col. 67, Morton v. Sewart.

1 Hill's S. C. Ch'y Rep. 166. 16 N.Y. 133.

6 Munf. 83, Fitzhugh v. Jones. 8 Esp. 76.

7 Dana, 281, Chiles v. Nelson.

9 M. & W. 78, Beckham v. Drake.

6 A. & E. 486, Jones v. Littledale.

2 Kent's Commentaries, pp. 630, 620, 261.

8 M. & W. 834, Higgins v. Senior.

2 M. & W. 440, Magee v. Atkinson.

7 Cushing, 374, Huntington v. Knox.

5 Littell, 1, Tutt v. Brown.

3 Marsh. 484, McAlexander v. Lee.

2 Camp. 22. 8 Queen's B. 604, 609.

2 Term Rep. 209. 6 Cushing, 225.

1 Denio, 471. 1 Cushing, 273.

8 Wend. 494. 24 Wend. 102.

40 English Common Law, 594.

11 M. & W. 315, Drake v. Beckham.

10 B. Mon. 349, Violett v. Powell's adm'r.

13 B. Mon. 217, Bates v. Best.

19 Johnson, 78, Vibbard, & c. v. Johnson.

21 Wend. 280, Anderson v. Cornly.

26 Vermont, 112, Barbee v. Brittan.

BULLOCK & ANDERSON, For Hamilton,

CITED

Chitty on Contracts, p. 213.

Story on Agency, sec. 251.

Paley on Agency, pp. 143, 144.

6 Mon. 581, De Hart v. Wilson.

1 J. J. M. 285, Vanada's heirs v. Hopkins's adm'r, & c.

6 Mann & G. 236, Wilson v. Tumman.

9 Peters, 607, Owings v. Hull.

7 Hill, 128, Hays v. Stone.

6 Pick. 200, Copeland v. Mercantile Ins. Co.

2 T. R. 189, Smith v. Colgan.

2 Parsons on Contracts, pp. 3, 4, 61, 62.

1 Greenleaf's Evidence, section 275.

4 Bibb, 348. 3 Marsh. 381.

4 Bibb, 563. 1 Marsh. 157.

OPINION

COFER JUDGE:

Offutt brought this action in the Jefferson Court of Common Pleas against Bell, alleging that about the 16th of September, 1873, he sold to Bell one thousand fat hogs, to average two hundred and sixty pounds gross, at the price of $4.90 per hundred pounds, to be delivered at the Bourbon House Stock-yard in Louisville, in three lots on different days, between the 1st and 10th of November, to be designated by Bell; that Bell failed to designate the days on which the hogs should be delivered, and that he (Offutt) had on the 7th, 8th, and 10th of November, the 9th being Sunday, tendered one thousand hogs according to the terms of the contract, but that Bell refused to accept them; that he immediately sold them at the place of delivery for the best price he could obtain, which amounted in the aggregate to $3,414.89 less than they would have brought at the contract price, and he prayed for judgment against Bell for that sum.

By an amended petition, filed before Bell had answered, Offutt alleged that after filing his original petition he had learned for the first time that Bell purchased the hogs as the agent of W. B. Hamilton; that both Bell and Hamilton concealed from him the fact that Bell was Hamilton's agent in the transaction; and making Hamilton a defendant, he prayed judgment against him also.

Bell denied all the material allegations of the original petition; but admitted that in the month of September, 1873, he was engaged as agent for Hamilton in contracting for hogs; that as Hamilton's agent he did confer with Offutt concerning the purchase of a lot of about one thousand hogs; that the preliminaries of the contract were discussed, after which he and Offutt separated, agreeing to meet again and reduce to writing any contract they might thereafter make; and that it was well understood that no contract was then made, and that there was to be none except in writing, and he denied that any contract was ever consummated between them; but if there was a contract, he alleged that he made it as Hamilton's agent, having full authority to do so, and that he disclosed his agency at the time to Offutt.

Hamilton answered the petition and amended petition, and put in issue all the facts relied upon as the foundation of a recovery against him.

A trial was had of the issues thus made, which resulted in a verdict and judgment in favor of Offutt and Hamilton; and Bell's motion for a new trial as to Offutt, and Offutt's motion for a new trial as to Hamilton, having been overruled, they have both appealed.

Upon the question whether a contract was in fact concluded, as claimed by Offutt, or only discussed and left incomplete, to be afterward finally agreed upon and reduced to writing, as claimed by Bell, the evidence was conflicting, and it therefore became necessary to submit that question to the decision of the jury.

Upon this point Bell asked the court to instruct the jury that they could not find for the plaintiff unless they believed from the evidence that the alleged contract for the purchase of the hogs was concluded on the night of the 16th of September, 1873, as then understood by both parties; and that if they believed from the evidence that either party understood when they separated that night that any thing else was to be done to consummate the contract, then they must find for the defendant Bell. The court refused so to instruct, and on motion of Offutt told the jury, if they believed from the evidence that Offutt and Bell agreed upon the contract as set forth in the petition, and after the terms had been mutually assented to it was further agreed that they would at a future day reduce said contract to writing, it was not essential to the validity of the contract that it should have been reduced to writing.

The instruction asked by Bell made the question whether a contract had been in fact made depend upon his understanding of the legal effect of the agreement to reduce the terms of the contract to writing, and not upon the question whether they in fact agreed upon the terms, and then agreed to enter into a writing as evidence merely of a contract already made.

The court was clearly right in holding that if the terms of the contract had been mutually agreed to, and the parties then made a further agreement to write and sign a paper evidencing those terms, the contract was valid without the writing.

This is not an infringement of the rule that " both parties must purpose and mean the same thing" (Parsons on Contracts, page 5, section 2); or, as otherwise expressed, that there must be " a concurrence of intention in two parties." (Pothier on Obligations.) The instruction left it to the jury to say whether the parties did purpose and mean the same thing. All the court did was to say in effect, " If these parties agreed the one to sell and the other to buy one thousand hogs of a given quality, to be delivered at a designated place at a given price, on days to be named by the purchaser, there was a valid contract, although they may also have agreed that they would at some future time reduce the terms of their agreement to writing, and although one of the parties may have understood or believed that the contract would not become obligatory on him until it was written and signed by both parties."

To hold otherwise would make the validity of contracts depend not on what the parties said and did, but upon their understanding of the legal effect of their words and acts. If two persons enter into a verbal agreement about a matter as to which an enforceable parol contract can be made, it would be no defense when one of them is sued for a breach of the contract that he understood it would not be obligatory unless reduced to writing; nor does a contemporaneous agreement to reduce a contract to writing make its validity depend upon its being actually reduced to writing and signed. The agreement to put it in writing amounts to no more than an agreement by the parties to provide a particular kind of evidence of the terms of their contract, and no more prevents its enforcement upon other legal evidence than an agreement that they would go to a named individual and state to him the terms of their contract would render the testimony of any other competent witness inadmissible to prove what the contract was.

The intention of parties in treaty about a contract must be gathered from their language or their conduct, or both, and the legal effect of what they say and do can not be altered or modified by the undisclosed intention or secret understanding of either.

It appeared from the testimony of Offutt that he did not own quite one half of the hogs tendered to Bell, and that the others belonged to his father, brother, and sister, and perhaps some others, with whom he had agreed that he would take their hogs and put them in on his contract, and pay over to them the price received; and with a view to raise the...