McDonnell v. Coeur d'Alene Lumber Co.

Mount, J. The appellant brought this action to recover-damages against the respondent for the breach of an alleged-contract. At the close of the plaintiff’s evidence, the trial court sustained a motion for a directed verdict, and dismissed the action. The plaintiff appeals. The facts as shown by the evidence are, in substance, as-follows: In the year 1905 the respondent was engaged in-the lumber business, at Coeur d’Alene, Idaho. The appellant and one Anthony Shea were copartners in the- logging; [497] business. In July of 1905, the appellant and Anthony Shea went from Spokane to Coeur d’Alene to look for a logging contract. They called upon the respondent company, and were informed that that company desired some logging done in that season on Santa creek, which was a branch of the St. Mary’s river, in Idaho, where respondent company owned some timber land. Appellant and Mr. Shea thereupon went into the woods and examined the timber, and returned to the office of the respondent company at Coeur dcAleñe, where they met and talked with Mr. Newton and Mr. Carroll, officers of the respondent company. The appellant relates this conversation as follows: “Mr. Carroll asked us if we found anything that suited us, and we told him that we did, but we didn’t care to have anything to do with IS as it was too large. . . . We told him that we did not even care to log all of 23 as our outfit wasn’t large enough for that amount of timber. They said they didn’t know whether they would care to let a portion of a section or not at that time. We talked it over a couple of days or so and they discussed it with us. We were there a couple of days and had conversations about every day with Mr. Carroll in regard to the conditions. And so we talked over the conditions and several things and finally he said he had decided pretty near what he would do. So that evening he said he was going to Missoula, and we met him and Mr. Newton on the street. Pie was going to take the electric car down this way and go to Missoula. And he said to us again —he asked us what we wanted to do. We said we were ready to get out the south side of Santa creek any time he desired to let it out. He asked us what we would put the south side in for, delivered in the St. Mary’s river, drive it and log it, and Mr. Shea spoke up and said four dollars per thousand. So he turned to Mr. Newton and said, ‘I guess that’s all right. I guess it will all right to let that to the boys.’ I said, ‘We want to be certain about it. We want to know whether we are going to get it or not.’ He said, ‘I will tell you what we are going to do. Mr. Newton and I will talk it over between now and the time the train goes, and we will decide then just what we will do. You boys call around at the [498] office in the morning and Mr. Newton will let you know just what we will do about the matter.’ Mr. Newton was alone in the office and he held us for a moment. I believe he said he was waiting for Mr. Smith. Just then Mr. Smith came in and he called him into the private office and said, ‘Mr. Carroll and I talked this matter over this evening and decided to let these boys have the south side of 23.’ He asked Mr. Smith what he thought about it and he mentioned the price of four dollars delivered 'in the St. Mary’s river. Mr. Smith said he considered that a fair bargain; that they were getting it done reasonably enough, and at the same time we should be able to make some money out of it ourselves. Mr. Newton said, ‘Yes, that is what we figured it would be,” and he turned to us and said, ‘You can consider the contract yours.’ We told him. that our outfit was at Leavenworth, Washington, and that there were several pieces of timber we were thinking about logging, and we did not want to let those go and go to the trouble of getting our outfit unless we were positive of the contract. ‘Why,’ he said, ‘the contract is yours. Go ahead and log it. I would give you a written contract but I prefer to have you wait until Mr. Carroll comes back to arrange the details in regard to the payments. I didn’t go over that with him, that is, the payments’; and wc told him wc didn’t care enough about them as we were positive the contract was ours. And he said, ‘It is yours. Go ahead and get at it.’ ” Mr. Smith, above referred to, testified in substance the same as above, and that Mr. Newton said to appellant and to Mr. Shea that, “they would have to wait until Mr. Carroll got back and that they would arrange the details.” Mr. Shea testified in regard to the contract in substance the same as above, and also that he understood that when Mr. Carroll came back a written contract would be entered into. This all occurred in July, 1905. No written contract was entered into. The appellant and Mr. Shea never performed the contract nor entered upon the work, but in the early part of September, 1905, they again went to Coeur d’Alene and were then informed that the respondent had let a contract to other parties, and refused to permit the appellant and Mr. Shea to enter upon the work. The appellant and Shea had [499] in the meantime brought their teams and outfit from Leavenworth to Spokane for the purpose of entering upon the work. Mr. Shea assigned his interest in the contract to the appellant, who brought this action to recover the sum of $4,000 damages alleged to be the profits which the appellant would have made on the contract. It is apparent from the statements hereinbefore made and from the reading of the evidence in the case that no binding, completed contract was ever entered into. The main features of the contract were agreed upon and the appellant and his partner were informed that the contract was theirs; that they could go ahead and log it. This was said in July, and it was understood that the work was not to be commenced until the following September. The appellant’s evidence clearly showed that the details of the contract were not arranged, and the contract itself was to be reduced to writing and the details were to be stated therein. This was never done. At most the parties were negotiating upon the terms of the agreement to be entered into between them. They had agreed upon the main questions, viz., the land to be logged, the price per thousand, and the place of delivery and time of payment, and about the time the work was to begin, and also that the contract should be reduced to writing wherein the details should be stated. But while these features had been agreed upon, they had not passed the stage of negotiations, because they had not been reduced to writing as the parties contemplated. The rule in such cases is stated in 9 Cyc. 280, as follows: “Where parties are merely negotiating as to the terms of an agreement to be entered into between them, there is no meeting of minds while such agreement is incomplete. Thus, where they intend that their verbal negotiations shall be reduced to writing as the evidence of the terms of their agreement, there is nothing binding on them until the writing is executed.” See, also, Clark, Elementary Law, pp. 167-8; Clark, Contracts (Hornbook series), p. 62. Under this rule it is ap [500] parent that no binding contract was proven, which could be enforced or which could be made the basis of an action for damages. It is argued that, inasmuch as the appellant had brought-his teams from Leavenworth to Spokane, Washington, preparatory to going to Coeur d’Alene and entering upon the work, the complaint should be treated as amended here so as to permit a .recovery for damages caused thereby. There-was no offer to amend the complaint in this réspect at the-trial, and there is no evidence in the record that the appellant suffered damages on account of bringing his “outfit”' from Leavenworth to Spokane. All the evidence is that the-“outfit” was brought to Spokane about the 1st of September, 1905, preparatory to entering upon the work. This evidence-was admitted over the respondent’s objection. But it does, not necessarily show that the appellant was damaged. There is no error in the record, and the judgment must, therefore be affirmed. . Crow and Parker, JJ., concur.