Rodgers v. Larrimore & Perkins

• Decision Date: 11 June 1920
• Citation: 188 Ky. 468,222 S.W. 512
• Parties: RODGERS v. LARRIMORE & PERKINS.
• Court: Kentucky Court of Appeals

222 S.W. 512

188 Ky. 468

RODGERS v. LARRIMORE & PERKINS.

Court of Appeals of Kentucky.

June 11, 1920

Appeal from Circuit Court, Trimble County.

Action by Larrimore & Perkins against J. L. Rodgers. Judgment for plaintiffs, and defendant appeals. Affirmed.

Eugene Mosley, of Bedford, and Charles Carroll, of Louisville, for appellant.

Edwards Ogden & Peak, of Louisville, for appellees.

QUIN J.

This action was instituted in the lower court by appellees for alleged breach of the following contract:

"Milton Ky. Nov. 26, 1916. We have this day sold to R. A. Perkinson & Smith my entire crop of tobacco grown in the year 1916 which tobacco, or any part thereof, I have not sold or contracted to sell to another consisting of about 18,000 pounds, at the following prices: About 18,000 pounds of bright leaf, red leaf, lugs, trashes, flying tips, green or worm-eaten at nine cents per pound delivered at his factory in HHds. Louisville, Wts by April 1, 1917, in good handling order free of any material damage, also to be well classed when stripped, and neatly tied in hands free of stalks and suckers.

J. L. Rodgers."

By successive assignments appellees became the beneficiaries of this contract. Having taken appellant's deposition and ascertained the exact weight of the tobacco and the price realized on the sale thereof to other persons, the petition was amended to conform to the proof. A demurrer was sustained to the petition as amended. In a further amendment the cause of action was based upon a verbal contract between the original parties, substantially the same as that set out in the writing sued on. It was alleged that the contract referred to in the petition was a memorandum of said sale delivered to the purchasers by appellant, a duplicate of which, signed by Perkinson & Smith, was delivered to appellant. A demurrer to the pleading as thus amended was overruled, and this is one of the two errors urged for reversal. In one paragraph of the answer it was alleged that appellant was prevented from delivering the tobacco to the purchasers or their assignees because of a garnishment that had been served upon him, which created a lien upon Smith's interest in the tobacco, and that Perkinson & Smith having, upon request, failed to release said lien, they violated their contract, thus releasing appellant. The court sustained a demurrer to said paragraph, and this is the other error complained of. Upon the remaining issues raised by the pleadings a trial was had, resulting in a verdict in appellees' favor for $722.87.

It is contended the writing sued on was void because unilateral. One of the essential elements of an enforceable contract is mutuality of the obligation. Where it is left to one of the parties to an agreement to choose whether he will proceed or abandon it the contract is not binding upon either. Berry v. Frisbie, etc., 120 Ky. 337, 86 S.W. 558, 27 Ky. Law Rep. 724. Therefore the lower court properly sustained the demurrer to the petition, but, as amended, it was not demurrable. It is alleged in the last amendment that the parties entered into an agreement by the terms of which appellant agreed to sell and deliver his tobacco for the price stated, to be paid for according to Louisville weights that Perkinson & Smith agreed and bound themselves to receive and pay for said tobacco, and this contract was evidenced by the memorandum of sale, thus we have all the essentials of a...