Johnson v. Breckenridge-Stephens Title Co.

LEVY, J. (after stating the facts as above). The jury made the finding- that the agreement was made according to the terms alleged by appellants in their cross-action. The court then concluded that the agreement, according to the evidence and as alleged and found by the jury to have been made, was, in legal effect, unilateral, and could not be enforced, as to the damages sought, specifically against the appellee. Consequently the controlling question presented in the record to be determined is that of whether or not the court erred in concluding, as he did, that the contract relied on by appellants to sustain their cross-action was, in legal effect, a unilateral agreement. If- it were not a unilateral agreement, but •such an agreement as would be legally enforceable according to its terms, then the judgment, we think, would have to be reversed and the entire cause remanded. The appellants, in view of the record, would not be entitled to have a judgment in their favor on the verdict as to some of the damages found by the jury. The charge on the measure of damages was also incorrectly stated. On the other hand, if the court correctly concluded that the agreement was not legally enforceable according to its terms because unilateral, then the action of the court in treating the finding of the jury as immaterial on the question of damages in favor of appellant would not be reversible error. [1] According to the agreement it appears that— (1) “The defendants were to have the right to use the indexes and other records of the abstract plant” which was owned by and in the possession, of the Luekel-Darnell, Inc., “for the purpose of making, compiling preparing and selling abstracts”; and (2) “the defendants were to pay the Luekel-Darnell, Inc., 30 per cent, of all the money collected from the sale of all abstracts made and sold by said defendants”; and (3) “the terms of said contract were to remain in force and effect so long'as the abstract business in Stephens county remained and continued in force more than it normally was prior to the oil boom and activity in said county.” Are there reciprocal promises, so that there is something to be done by both parties? *198 According to the terms, the Luckel-Darnell, Inc., either offered or promised to give the appellants “the right,” or permission, “to use,” or have casual access to, the indexes and records, to enable the appellants to prepare abstracts therefrom. The term “right to use” was not intended in the sense of disposition or exclusive possession of the property to appellants. There was no consideration expressed or moving at the time to the Luckel-Darnell, Inc., for the offer or promise to give permission of casual use to appellants of the indexes and records. The only obligation of the Luckel-Darnell, Inc., is an implied promise to receive the 30 per cent, collected from the sale of abstracts for such time as it may suffer or permit appellants to continue “the right to use” the property. In effect the Luckel-Darnell, Inc., was merely giving to appellants permission to have access to and make casual use of the property owned by it and in its possession, and impliedly agreeing to accept a special price for the use, if used by appellants. The appellants, according to the terms of the agreement, were under the obligation only, as an implied promise, to pay 30 per cent, of all money collected from the sale of abstracts when made, if any were ever made and sold by them. Even though the appellants may have been promised “the right” to the use of or access to the-property “so long as the abstract business in Stephens county remained and continued more than it normally was prior to-the oil boom and activity in said eounty,” still there is no promise appearing on their part to make “use" of the property at any period or time during the continuance of any such right or permission. There is no promise, express or implied, on the part of the appellants “to use,” under the granted “right” or permission of the Luckel-Darnell, Inc., the indexes and records at any time either during the day, week, month or year. It was entirely at the option or will of the appellants, and not obligatory upon them, to make use at all of the property. Neither is there any promise on appellants’ part “to use, prepare” from the indexes and records, “and sell,” any specified or ascertainable number of abstracts. There is no agreement “to prepare and sell” any abstracts at all made from these indexes and records. There was no time set or ascertainable for the appellants to begin to prepare and then sell abstracts from the indexes and records. In effect the appellants were not required, according to the terms, to make “use” of the property described and to perform the agreement. Their only obligation is an implied promise to pay at a stipulated price for such “use” of the property as is ever made of it. Considering, then, the nature and terms of the agreement, could the appellee have recovered damages in a suit against appellants for refusing, in the first instance, to commence and perform the contract? The clear defense of appellants to such suit would be, it is evident, that, under the terms of the agreement, whether or not any “use” was to be made of the property at any time by them was to be determined solely by their own arbitrary discretion and will. There would appear and be found the want of mutuality. [2] It is a general principle of law that if a contract is incapable, in the want of mutuality, of being enforced against one party, that party is equally incapable of enforcing it specifically against the other. Therefore if it appears, as it does, from the terms of the agreement under consideration, that the “right” or permission “to use” or have casual access to.the indexes and records could be declined or terminated in the inception or first instance' at the will of appellants without liability for damages, it must follow that its continuance was dependent upon the pleasure of both parties. [3] Further, would some performance on the part of appellants legally operate to render the agreement binding and enforceable? Undoubtedly it would to the extent of the “use” made. But a partial performance only would not relieve the agreement here of the want of mutuality in essential respects. The want of mutuality consists not only in the want of assent on the part of appellants to be bound by the permission to use the property, but, further, the want of definiteness as to the time the “use” would commence and the constancy of the use and the quantity or number of abstracts that would be required to be made from the indexes and records. The act of some performance would only relieve the agreement of the want of assent on appellants’ part to be bound by the agreement. The assent to be bound by the agreement, though, would not legally relieve the agreement from the otherwise indefiniteness of the lack of mutuality as to the future quantity of output of abstracts made from the records and indexes, or the frequency or irregularity of the “use” of same. Whether the “use” in the future would be frequent or very occasional would still be at the mere will of appellants. No agreement in these respects can be inferred from acts, in the absence of definite or prescribed terms of previous agreement. [4] We conclude that the contract itself here in controversy is indefinite and unilateral, and therefore determinable, as the court below held, at the will of either party. Grocery Co. v. Jamison (Tex. Civ. App.) 221 S. W. 998; Film Co. v. Morris & Daniel (Tex. Civ. App.) 184 S. W. 1000; Goff v. Saxon, 174 Ky. 330, 192 S. W. 25; Cold Blast Co. v. Bolt & Nut Co., 114 Fed. 77, 52 C. C. A. 25, 57 L. R. A. 696. As the appellants were not entitled to recover on the contract, the amount allowed on jury finding as a set-off against the appellee should, as contended on assignment of appellee, be disallowed. Therefore the judgment is reformed so as to *199 disallow and deny as a credit tlie sum of $366.75 in favor of appellants; and, as reformed, the judgment is affirmed. Footnotes [1] igssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2] other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes