Savannah Guano Co. v. Fogle

The opinion of the Court was delivered by Mr. Justice Hydrick. The Chief Justice is mistaken in saying that plaintiff put in evidence the instrument which was relied upon by defendant as the basis of his counterclaim. The record shows that plaintiff introduced only the notes sued on. While the instrument was in plaintiff’s possession, as explained in the opinion of the Chief Justice, and was carried to Court and produced by plaintiff, the record shows that nothing was said about it until it was brought out on cross-examination of plaintiff’s witnesses, and it appears in the record under the head of “Defendant’s Exhibits.” 1-3 However, it is of no consequence whether it was put in evidence by plaintiff or defendant. For when defendant set up that instrument in his answer, as the basis of his counterclaim, plaintiff had the right to introduce it, in anticipation .of the defense (however doubtful might be the policy of undertaking to disprove an adversary’s case, in advance of his making out a prima facie case), without recognizing it as a binding contract, but merely to show that defendant had acknowledged in writing that it was not to be a binding contract until approved by an executive officer of the company, and that there had been no contract growing out of the previous communications, oral or written, between the parties. Subsequent events showed the wisdom of inserting that provision, for, although defendant sets it up as the basis of his counterclaim, when it became perfectly clear that it had not been approved by an executive officer of the company and defendant had been *237 promptly notified, as he was, that it would not be approved, and was not, therefore, a contract, defendant undertook to shift his ground and prove a previous oral contract, and that is the testimony to which plaintiff’s attorney (Mr. Friday) objected. The testimony was admitted, though it was subsequently ruled incompetent, on the ground that defendant had admitted that all previous negotiations were merged in the proposed contract, and, therefore, there was no other contract for the breach of which plaintiff was liable. That ruling was correct. But even if it should be conceded that defendant’s testimony was competent to prove a previous contract, which was not merged in the written proposal, it utterly fails to prove one. He says nothing more than that Mr. Condon, plaintiff’s sales agent, told him in March that, if he would pay what money he could on the notes then due for the fertilizer sold him in 1914, he would sell him fertilizer for 1915, and carry the balance-of the 1914 indebtedness, and that he promised to come back in a week or ten days and take his order for the fertilizer for 1915, but never did so. Was that a contract? Certainly not. In the first place, though it appears that Mr. Condon was only a sales agent, there was not a particle of testimony tending to prove that he had any authority to make such an agreement, and clearly the burden was upon defendant to prove that he had such authority. 4 Second, there was no consideration for it. Payment of a part of an existing debt then due was no consideration for the alleged contract, for in making the payment defendant did only what he was- bound in morals and in law to do. He had no legal or moral right by withholding payment to attempt to coerce plaintiff into financing his speculation in holding his cotton for a better price. Plaintiff had furnished him the fertilizer to make the cotton, and it was his duty to pay the debt, when it became due, without regard to the price of cotton. *238 5 Third, defendant’s own testimony shows that there was no contract, but only a promise to make one. Can a party be mulcted in damages for refusing to make a contract, evemthough he has promised to do it, when the terms of the contract have not been agreed upon? Until the terms have been agreed upon, there can be no contract. Here no terms were specified or agreed to. The parties had not agreed as to the quantity of fertilizers to be furnished, the brand or quality, the price thereof, the time within which it should be furnished, or the time of payment, or the security to be given. Not a single element of a valid contract was proved. Fourth, if all the necessary elements of such a contract had been proved, it would have been obnoxious to the statute of frauds, which says: ' “No contract for the sale of any goods, wares and merchandise for the price of fifty dollars or upwards shall be allowed to be good except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereto lawfully authorized.” It follows that the judgment is right, and ought to be affirmed. Judgment affirmed. Messrs. Justices Watts, Fraser and Gage concur.