Cherry v. Smith

• Decision Date: 30 April 1842
• Parties: CHERRY v. SMITH.
• Court: Tennessee Supreme Court

22 Tenn. 19

CHERRY

v.SMITH.

Supreme Court of Tennessee.

April, 1842.

Cherry instituted an action on the case in the circuit court of Haywood county, against Smith and others, and declared on an agreement which was in the following words:

“We agree to ship and forward to Daniel Cherry, Esq., Cherryville, Tennessee, a number of barrels of salt, not to exceed one hundred and fifty, when called on, at the rates of fifty cents per bushel, or fifty pounds reweighed at the Mississippi, he, the said Cherry, giving his note, negotiable and payable in the Union Bank at Jackson, Tennessee, the 1st day of January, 1838. This 17th day of August, 1837.

B. B. Smith & Co.

The salt we have on hand is considered of the first quality.”

The defendants pleaded non assumpsit, and the issue thereupon was submitted to a jury, who returned a verdict of $266.62 1/2 for the non-delivery of the salt, which was demanded by the plaintiff. On motion the court arrested the judgment, and the plaintiff appealed.

Strother, for the plaintiff. The question submitted by the record for the decision of the court is whether the agreement upon which the plaintiff's action is brought is sufficient in law to raise such a contract as is binding upon the defendants.

It is contended for the plaintiff that the agreement constitutes a valuable consideration:

1st. Because it stipulates that whatever number of barrels of salt the defendants should ship and forward to the plaintiff was by him to be paid for, by his executing his promissory note, payable January 1, 1838, in the Union Bank at Jackson.

2d. It is contended for the plaintiff that there is mutuality in the contract, because the defendants were not bound to deliver any salt until the plaintiff tendered them his note. This constitutes a quid pro quo, which makes the mutuality, and it is not the giving each party a right of action, for some contracts are binding on the one party and not on the other, but at the discretion of the latter. See 3 John. Cas. 60;13 Mass. 91; 14 John. 487.

3d. Although, by the terms of the contract, it was at the option of the plaintiff to takke any number of barrels of salt he might designate, yet this does not make it a nude pact for a contract may be so made as to be optional with one of the parties and binding on the other. See 2 John. Cas. 253;3 John. Cas. 81.

Loving, for the defendants. The defendants in error insist that the memorandum or paper writing declared on in the declaration of the plaintiff, Cherry, and which is the foundation of this action, is not sufficient in law to authorize a recovery against the defendants:

1st. Because the defendants say that the same does not constitute a contract.

What is a contract? It is the reciprocal or mutual assent of two or more persons competent to contract. There must be a good and valid consideration, etc. The assent or consent must be mutual; and every agreement, therefore, ought to be so certain and complete that each party may have an action upon it; and the agreement would be incomplete if either party withheld his assent to any of its terms. The agreement must, in general, be obligatory on both parties, or it binds neither. Vide Chitty Con. 3, 4; 2 Kent Com. 449, 450.So a written agreement “to remain with A B two years, for the purpose of learning a trade,” is not binding for want of an engagement in the same instrument by A B to teach. Vide Lees v. Whitcomb, 5 Bing. 34. And, in a case in which it was attempted to charge a defendant upon an award, Lord Kenyon held it was necessary to prove that the plaintiff also had agreed to be bound by the award; observing that otherwise there was no mutualty, and, therefore the defendant's agreement was a mere nudum pactum, and not binding on him.

No contract is raised by a mere affirmation in discourse--a mere overture, or offer to enter into an agreement, not definitely and expressly assented to by both parties. 7 John. 470.

And, where A signs a writing declaring that he will sell B his house at a certain price, this is a mere proposition, and not an agreement or contract. Vide Tucker v. Wood, 12 John. 190.

The contract or agreement declared upon is not, in our estimation, binding, but is a mere overture or proposition. The defendants say: “We agree to ship and forward to Daniel Cherry, Esq., of Cherryville, a number of barrels of salt, not to exceed one hundred and fifty, when called on, at the rates of fifty cents per bushel, or fifty pounds reweighed at the Mississippi, he, the said Cherry, giving his note, negotiable and payable in the Union Bank at Jackson, Tenn., the 1st January, 1838. And the salt we have on hand is considered of first quality.”

What is this but a mere proposition to ship and forward? The law requires something more. There must be on the part of the vendor an agreement (where the contract is not executed, but executory, as in the present case) to sell and deliver the goods or article sold at a future day, and for a stipulated price, and the vendee must agree to accept and pay the price agreed upon, or it will give neither party a right of action. 2 Kent Com. 450.

Why should the defendant say that “we agree to ship and forward a number of barrels of salt,” if indeed they had actually sold and promised to deliver to the plaintiff a number of barrels of salt, not exceeding 150, at a future day?

Why should the defendants say that “the salt we have on hand is considered of the first quality,” if indeed they had actually made the sale, and the plaintiff had actually purchased? In that case he would be the purchaser of the salt, whether good or bad, of which he was the judge himself, and of or about the quality of which it would have been unnecessary for defendants to have spoken. And hence we conclude, as the words “we agree to ship and forward” are used instead of sell and deliver, that this was a mere overture or proposition to sell and deliver; and the words “the salt we have on hand is considered of first quality” are mere expressions of recommendation and praise of the salt, instead of warranty of the quality of salt sold to the plaintiff.

Where is the mutuality in this instrument of writing? Where is the obligation o n both parties to make it binding and good in law?

It purports to bind the defendants, but there is no...