Nutt v. Watkins

• Decision Date: 17 June 1909
• Citation: 132 Ga. 700,64 S.E. 999
• Parties: MALLETT & NUTT. v. WATKINS.
• Court: Georgia Supreme Court

64 S.E. 999

(132 Ga. 700)

MALLETT & NUTT.

v.WATKINS.

Supreme Court of Georgia.

June 17, 1909.

1. Contracts (§ 57^*)—Consideration.

Watkins signed and delivered to Mallett a writing as follows: "I agree to sell W. M. Mallett 25 bales of middling cotton at 7 1/2 cents delivered at his warehouse during November and October, 1900. 4/2/1900. Jackson, Ga. B. F. Watkins." Such writing, not showing any consideration to support the promise of Watkins, did not, of itself, bind him to deliver the cotton, or make him liable in damages for a failure to do so.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 345, 352, 353; Dec. Dig. § 57.*]

2. Trial (§ 250*) — Instructions—Applicability to Pleadings and Evidence.

A charge must be adjusted to the evidence; and there being no evidence of any promise on the part of Mallett to buy the cotton, other than a written promise delivered to Watkins, the court did not err in instructing the jury that the plaintiffs could not recover unless Mallett executed and delivered to Watkins such written promise, or in failing to charge what would be the effect of an oral promise on the part of Mallett to buy the cotton.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 584-586; Dec. Dig. § 250.*]

3. Sufficiency. of Evidence.

The evidence was sufficient to authorize the verdict, and the court did not abuse its discretion in denying a new trial.

(Syllabus by the Court.)

Error from Superior Court, Butts County; E. J. Reagan, Judge.

Action by Mallett & Nutt against B. F. Watkins. Judgment for defendant, and plaintiffs bring error. Affirmed.

Jno. R. L. Smith, for plaintiffs in error

W. E. Watkins, for defendant in error.

HOLDEN, J. The plaintiffs in error brought suit against the defendant in error for damages, alleging substantially as follows: The defendant executed and delivered to W. M. Mallett a contract of which the following is a copy: "I agree to sell W. M. Mallett 25 bales of middling cotton at 7 1/2 cents delivered at his warehouse during November and October, 1900. 4/2/1900. Jackson, Ga. B. F. Watkins." The plaintiffs in error were transferees of this contract under a transfer dated October e, 1903, made by the administrator of W. M. Mallett. The defendant refused to perform the contract, and the plaintiffs allege that the market price of cotton during the months of October and Novem ber was more than 7 1/2 cents per pound, and the plaintiffs sued to recover the difference between such contract price and the market price. Upon the trial of the case a verdict was rendered for the defendant, and the plaintiffs excepted to the order of the court overruling their motion for a new trial.

1. The written promise by Watkins to sell Mallett the cotton, standing alone, is an executory contract and without a consideration. The writing is not signed by Mallett. It shows no promise by Mallett to buy the cotton, or other consideration to support the promise of Watkins to sell the cotton. Being an executory contract without a consideration, it is nudum pactum and without any binding force. Civ. Code 1895, §§ 3656, 3657. In order to make an executory contract binding, there must be a consideration to support the same. Mutual promises constitute a good consideration for each other. Civ. Code, § 3661. In the absence of any promise by Mallett to take and pay for the cotton, or other consideration to support the promise of Watkins, to sell the cotton, or anything done by Mallett whereby he became bound to take and pay for the cotton, Watkins was not bound to sell the cotton, nor was Mallett bound to buy it. In this connection, see Simpson v. Sanders, 130 Ga. 265, 60 S. E. 541; Cooley v. Moss, 123 Ga. 707, 711, 51 S. E. 625; Glessner v. Longley, 125 Ga. 676, 54 S. E. 753; Swindell & Co. v. First Nat. Bank, 121 Ga. 714, 49 S. E. 673; Morrow v. Southern Express Co_v 101 Ga. 810, 28 S. E. 998; Sivell v. Hogan, 119 Ga. 167, 46 S. E. 67; Harrison v Wilson Lumber Co., 119 Ga. 6, 45 S. E. 730. The fact that Mallett wrote the written promise, signed by Watkins, wherein the name of Mallett appeared, and the fact that the writing, after being signed by Watkins, was delivered to and accepted by Watkins, would not bind Mallett to buy the cotton, if tendered to him by Watkins.

2. One ground of the motion for a new trial is as follows: "Because the court erred in charging the jury as follows: 'Now, gentlemen, I charge you, as a matter of law, there can be no recovery on the contract as set out in this petition—on the contract alone; there being the want of mutuality in the contract. There being nothing in it imposing any obligation on Mr. Mallett to purchase or pay for this cotton, therefore under the law it is void, unless there was a written contract, made and signed at the same time by Mr. Mallett and delivered to Mr. Watkins, in which contract Mr. Mallett...