Etheredge v. Barkley

• Decision Date: 21 December 1889
• Citation: 6 So. 861,25 Fla. 814
• Parties: ETHEREDGE v. BARKLEY.
• Court: Florida Supreme Court

6 So. 861

25 Fla. 814

ETHEREDGE v. BARKLEY.

Florida Supreme Court

December 21, 1889

Appeal from circuit court, Jackson county; JAMES F. McCLELLAN Judge.

Syllabus by the Court

SYLLABUS

B being indebted to S. &. E., signed a paper agreeing that, if S. & E. would extend the time in which he was to pay them the amount due them upon a decree of the court till a specified day, he would pay S. & E. interest on the decree at the rate of 12 per cent. per annum, instead of the legal rate, 8 per cent. S. & E. did not accept the agreement, nor did they by any act show that they intended to accept it, but ordered the property of B. sold under the decree, unless he paid the costs of the decree. B. paid the costs under protest, but did not pay the increased rate of interest on the decree. E., as surviving partner of S. & E., then brought suit against B. on his agreement. Held, that as S. & E. did not accept or assent to the agreement so as to bind themselves thereby, and as they violated the agreement, if bound by it, B. was not liable upon the agreement.

COUNSEL McKinnon & Langley, for appellant.

Liddon & Carter, for appellee.

OPINION

MITCHELL J.

The appellant, complainant below, foreclosed a mortgage in the circuit court of Jackson county against the appellee (defendant below.) Decree was rendered November 26, 1883, for $267.30. Subsequently the following agreement was entered into:

'January 29, 1886.

'In consideration of an extension granted me until March 1, 1886, I do hereby agree that a certain decree of foreclosure obtained against me in the circuit court of Jackson county, Florida, by James B. Slade and Charles A. Etheredge, copartners under the firm name and style of Slade & Etheredge, bear interest at the rate of twelve per cent. per annum, instead of the legal rate, and I promise hereby, for the consideration aforesaid, to pay said rate of interest on said decree from date of same. It is understood that if I fail to make payment of said decree by March 1, 1886, but shall instead give Slade & Etheredge such further security as they have before this proposed by letter to Liddon & Carter, my attorneys, then payment of said decree is not to be enforced before October 1, 1886.

B. B. BARKLEY.

'Witness: BENJ. S. LIDDON.'

The defendant failed to make payment by the first of March, 1886, and the plaintiff commenced suit upon the said agreement.

The defendant filed several pleas, all of which were demurred to, and the demurrer was sustained as to all but the first, which is as follows: 'That after the execution of said agreement said Slade & Etheredge violated said agreement, and refused to grant the extension provided for in the same, but directed thr property of the defendant embraced in the foreclosure decree mentioned therein to be sold to satisfy said decree on the first Monday in February, 1886, unless this defendant would pay plaintiffs the further sum of forty-nine and 50-100 dollars, the costs accumulated upon said foreclosure decree, which sum the defendant was forced to pay.'

Plaintiff joined issue on this plea, the issue was submitted to a jury, and the jury found for the defendant, and the case comes here from an order of the circuit court overruling plaintiffs' motion for new trial.

The errors assigned are:

(1) The verdict of the jury is contrary to law, evidence, and charge of the court.

(2) The verdict of the jury is against the weight and preponderance of the evidence, and unsupported by the evidence.

(3) The court erred in charging the jury that if they found that Mr. Philips was the agent of Messrs. Slade & Etheredge, and that as their agent he was directed to sell under the decree unless the defendant would pay the cost, that then they would find for the defendant.

(4) The court erred in charging the jury that if Slade & Etheredge directed the sale of the property unless defendant would pay the costs, that then they would find for the defendant.

The gravamen of the case is whether the defendant, Barkley, was, under the circumstances, liable to the plaintiff upon the agreement to pay him the increased rate of interest therein provided for.

Judge Story (1 Story, Cont. § 490) says: 'In order to create a contract, it is essential that there should be a reciprocal assent to a certain and definite proposition. So long as any essential matters are left open for further consideration, the contract is not complete; and the minds of the parties must assent to the same thing, in the same sense. A mere offer not assented to constitutes no contract, for there must be not only a proposal, but an acceptance thereof. So long as a proposal is not acceded to, it is binding upon either party, and may be retracted.'

The intention of the defendant in signing the agreement is patent. It was for the purpose of procuring an extension of time in which to settle his indebtedness to Slade &...