Morrow v. Southern Exp. Co.

• Decision Date: 20 July 1897
• Parties: MORROW v. SOUTHERN EXP. CO.
• Court: Georgia Supreme Court

28 S.E. 998

101 Ga. 810

MORROW v. SOUTHERN EXP. CO.

Supreme Court of Georgia

July 20, 1897

Syllabus by the Court.

Where mutual promises are relied upon as a consideration to support a contract, the obligations of the contract must be mutually binding upon the respective parties; and if one assume under an agreement to do a special act beneficial to another, and that other, under the terms of the contract, is under no obligation to perform any act of corresponding advantage to the former, the agreement is without such consideration as will support the promise of the party assuming to perform. Especially is this so when the time during which the alleged contract is to remain operative is so indefinite and uncertain as to render the same incapable of enforcement.

Error from superior court, Clayton county; J. S. Candler, Judge.

Action by J. W. Morrow against the Southern Express Company to recover damages for the breach of a contract. From an order dismissing the action on a general demurrer, plaintiff brings error. Affirmed.

Hammond & Cleveland and P. F. Smith, for plaintiff in error.

Dorsey Brewster & Howell and Erwin, Du Bignon & Chisholm, for defendant in error.

LITTLE J.

The substance of the contract upon which Morrow relied, and for the breach of which this action for damages was instituted was that he had made arrangements with the Central Railroad for, as long as he desired, to receive and carry all the milk and butter which he would offer for shipment at and from a given point to Atlanta, and return the vessels to the receiving point, at a given rate per 30 gallons; that while the railroad was carrying out this arrangement satisfactorily to him, by some arrangement between it and the express company the latter took charge of receiving and carrying the shipments on the same terms and conditions as the railroad company had undertaken to do, except that a slightly-increased rate of freight on such shipments was exacted; that in other respects the express company undertook and assumed to carry out the terms of the contract between Morrow and the railroad, and did carry out the terms of the contract for a number of years, and until November, 1882 when it declined to receive further shipments. The action was dismissed on general demurrer, and we are now called upon to determine whether the petition set out a cause of action.

If the contract was valid and binding, an action would lie for a breach thereof. If, on the other hand, the contract was not valid and binding, there can be no recovery. It is axiomatic in the law of contracts that there must be a consideration moving the parties thereto. The law will enforce no contract which is without consideration. An executory contract, without consideration, is nudum pactum, and of no binding force. Civ. Code, §§ 3656, 3637. Among the considerations recognized by law as sufficient to support a contract is that of mutual promises, or, as it is sometimes termed, a "promise for a promise." By section 3661 of our Civil Code it is declared that a promise of another is a good consideration for a promise. A promise, however, is not a good consideration for a promise unless there is an absolute mutuality of engagement, so that such party has the right at once to hold the other to a positive agreement. 1 Pars. Cont. 449; McKinley v. Watkins, 13 III. 140; Lester v. Jewett, 12 Barb. 502; 6 Barn. & C. 255; 5 Mees. & W. 241; 9 Exch. 507; Dorsey v. Packwood, 12 How. 126; Stiles v. McClellan, 6 Colo. 89; Cool v. Cuningham, 25 S.C. 136. And in cases of mutual promises, where the promise of one party is relied on as a consideration for the other, the promises must be concurrent and obligatory upon each at the same time, in order to render either binding. Road Co. v. Snediker, 18 Barb. 317; Railroad Co. v. Brinckerhoff, 21 Wend. 139; Burnet v. Bisco, 4 Johns. 235; 3 Term R. 653; Clark, Cont. p. 166; Story, Cont. § 569; Keep v. Goodrich, 12 Johns. 397; Tucker v. Woods, Id. 190; Buckingham v. Ludlum, 40 N.J.Eq. 422, 2 A. 265. The rule above announced applies in all cases where the contract remains wholly executory, and nothing is done to devest it of its unilateral character. There are instances in which a promise, though a mere nudum pactum when made, because the promisee is not bound, may become binding on his afterwards furnishing the consideration contemplated. Thus, where one promises to see another paid if he will sell goods to a third person, or promises to give a certain sum if another will deliver up certain documents or securities, or if he will...