Simpson & Harper v. Sanders & Jenkins

• Citation: 60 S.E. 541,130 Ga. 265
• Parties: SIMPSON & HARPER v. SANDERS & JENKINS.
• Decision Date: 26 February 1908
• Court: Supreme Court of Georgia

60 S.E. 541

130 Ga. 265

SIMPSON & HARPER v. SANDERS & JENKINS.

Supreme Court of Georgia

February 26, 1908

Syllabus by the Court.

A executed to B. an instrument under seal, which recites that for and in consideration of the sum of $1, the receipt of which is acknowledged, "A. hereby sells [to B.] his entire shingle output" between the 1st of March, 1905 and the 1st of March, 1906, local wagon trade excepted, at a stated price per 1,000. B. did not agree to purchase the shingles, nor to assume any obligation in respect thereto. Held that, inasmuch as the writing was not mutually binding upon both parties, this was not a contract of sale but was merely an offer or proposal to sell.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, §§ 39-43.]

It appearing, however, that the offer or agreement to sell was based upon a valuable consideration, it amounted to an option binding the promisor to make the proposed sale if accepted by the promisee, and was irrevocable until the expiration of the time agreed upon by the parties during which the offer was to remain open; and, if acceptance were made within such time, it would complete the contract.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, § 52.]

Error from Superior Court, Calhoun County; W. N. Spence, Judge.

Action by Simpson & Harper against Sanders & Jenkins. Judgment for defendants, and plaintiffs bring error. Reversed.

Where an offer of sale was based on a valuable consideration, it amounted to an option binding the promisor to make the proposed sale if accepted by the promisee, and was irrevocable until the expiration of the time agreed upon by the parties, during which the offer was to remain open, and, if acceptance was made within such time, it would complete the contract.

This case arose upon the issues made by a petition filed by Simpson & Harper, plaintiffs, against Sanders & Jenkins, as a partnership and as individuals, defendants, and demurrers filed by said defendants. The petition contains two counts, the first of which alleges, in substance, the following facts: Petitioners are wholesale dealers in shingles and lumber, and defendants are manufacturers of shingles. On February 23, 1905, the defendants executed and delivered to petitioners the following instrument: "This agreement entered into this the 23d day of Feby., 1905, between Sanders & Jenkins, of the county of Calhoun, Ga., of the first part, and Simpson & Harper, of the county of Fulton, state of Georgia, party of the second part, witnesseth: The consideration of this agreement is as follows: One dollar ($1.00) cash in hand this day paid, the receipt of which is hereby acknowledged by the party of the first part, and the faithful performance of the agreement hereinafter specified, and which is hereby made a part of this contract. Said party of the first part hereby sells their entire shingle output from March 1st to September 1st, for No. 1s at $2.00; and March 1st to October 1st, for No. 2s at 75 cents. Beginning September 1st for No. 1s, and October 1st for No. 2s, until March 1st, 1906, No. 1 shingles at $2.25, No. 2 shingles at $1.00, f. o. b. cars Edison, Ga. *** No shingles to be sold to any one else other than Simpson & Harper, local wagon trade excepted. [Signed] Sanders & Jenkins [L. S.], per R. L. Jenkins [L. S.]." By a subsequent amendment "petitioners allege that the prices mentioned in the contract are for shingles by the thousand, *** and that both they and the defendants well understood at the time said contract was entered into that such was the meaning thereof." And: "By virtue of the provisions of said agreement, and for and upon the consideration therein expressed, and the acceptance by plaintiffs of said contract and the entering by plaintiffs upon the execution thereof upon their part, and plaintiffs continuing to execute the same, the defendants sold to your petitioner exclusively, and petitioner became bound to pay therefore, the entire shingle output of defendants for the period and at the prices stated in said agreement, said agreement extending from the 1st day of March, 1905, to the 1st day of March, 1906." Petitioners faithfully performed at all times the obligations resting upon them under said agreement, and, in pursuance thereof, did take from the defendants, and pay the defendants therefor at the prices named in the said agreement, shingles delivered to petitioners by defendants under said agreement during the months of March, April, May, June, July, and August, 1905. In the month of September defendants removed their shingle mill from Edison to Carnegie, "a distance of a few miles." And on October 3d, defendants wrote to petitioners a letter, stating that: "After looking over our contract, we feel that we have complied with it as far as it holds us. White at Edison we gave you the entire mill cut, and we feel that the contract does not hold us at our new location." And since that date defendants have refused to deliver the petitioners any shingles under said agreement. Petitioners charge that the shingle output of defendants' mill, local wagon trade excepted, from October 3, 1905, to March 1, 1906, was 812,500 No. 1 shingles per month, and 437,500 No. 2 shingles per month. The petition alleges specifically the amount of "the excess of the market price of No. 1 [and No. 2] shingles, f. o. b. cars at Edison [during the months of October, November, and December, 1905, and January and February, 1906], over the price of No. 1 [and No. 2] shingles stated in said contract." And petitioners allege that they are entitled to recover from the defendants "the excess of such market price over the price stated in said agreement for said months for the amount of the entire shingle output of defendants, local wagon trade excepted." The second count of the petition alleges that "under and by virtue of said writing, and for and upon the consideration therein expressed, the defendants gave to your petitioners the option and exclusive right to take from defendants the entire shingle out put of defendants, local wagon trade excepted, from March 1, 1905, to March 1, 1906, at the prices named in said writing. Your petitioners, acting under, and by virtue of said agreement, exercised their said option and took from the defendants their entire shingle output, local wagon trade excepted, for the period extending from the 1st day of March, 1905, to the 1st day of October, 1905, paying to the defendants therefor the prices stated in said agreement. *** Petitioners have been at all times during said period from March 1, 1905, to March 1, 1906, ready, willing, and able to take and pay for the entire shingle output of defendants, local wagon trade excepted, at the prices stated in said agreement, and have so notified defendants; but, in violation of their agreement, the defendants on and from October 3, 1905, have refused to deliver to your petitioners the entire shingle output of defendants, local wagon trade excepted, or any part thereof." Wherefore petitioners allege that they have been injured and damaged as set out in the first count. The defendants demurred generally and specially to the allegations of the petition. The court sustained the general demurrer, and dismissed the petition. The plaintiffs excepted.

Peeples & Jordan, for plaintiffs in error.

A. G. Powell, J. R. Pottle, and Pottle & Glessner, for defendants in error.

BECK J.

1. Considered as a contract of purchase and sale, the instrument set forth in the statement of facts, and signed by the defendants in error, was unilateral and wanting in mutuality. By the terms of that instrument the defendants agreed to sell to the plaintiffs the entire shingle output, with certain specified exceptions, of their mills located at a designated point. The instrument, as we have seen, was signed only by the defendants. Under its terms no promise was made, nor obligation entered into by the plaintiffs. If the plaintiffs had not seen fit to give an order for the output of the defendants' mill, the defendants could not, by tendering or shipping shingles to the plaintiff, have compelled the latter to either take or pay for them. A promise by the plaintiffs to take the contemplated output of the defendants' mill, if made at the time of the execution of the instrument referred to, would have been a good consideration for the promise or undertaking of the defendants; but no such promise or undertaking was made or entered into by the plaintiffs. In Morrow v. Southern Express Co., 101 Ga. 810,...