Great West Grain & Seed Co. v. Ray

PRICE, Chief Justice. This is an appeal from the judgment of the District Court of San Patricio County. Appellant sued appellee to recover for an alleged breached contract to deliver maize. At the close of appellant’s testimony, on motion of defendant the court instructed a verdict in his favor and entered judgment thereon. Appellant declared on a written contract as follows: “This confirms sale to Great Wets Grain Co., Fort Worth, Texas, today. Date 5-30-45 250 acres 300 tons (est.) Threshed Maize @ $30.00 per ton Less - 100 Tons-already-sold — Delivered cars at Sinton, Texas. All this is to be good, bright, dry, and not to exceed 15% moisture - 10% off for over 15% - to be loaded by Buyer not later than July 20, 1945. Seller U. E. Ray. Buyer E. J. Mutchler.” This contract is alleged to have been orally modified during July, 1945. In substance the modification is as follows: Ap-pellee was to be allowed to deliver under aforesaid contract only grain containing 15% or less moisture; and total breach of contract was alleged in that appellee failed to deliver any maize thereunder. Appellee answered by a general denial, set up that as to the written contract heretofore set forth same was not to become binding until confirmed by appellants; that by letter dated June 1, 1945, received by him on June 4th, appellants sent him a purported letter of confirmation varying from the contract heretofore set out; that he immediately advised appellants that their confirmation varied from the contract and withdrew his offer to sell the maize. Appellants pleaded supplementally that said contract was binding without their confirmation. The written memorandum upon which appellants in part based their case was signed by appellee and purported to be signed by E. J. Mutchler on behalf of appellants. In fact, one Beard, an employee of Mutchler, actually signed Mutchler’s name thereto, however, at his direction. Beard, an employee of Mutchler and a witness on behalf of appellants, testified that the agreement was that appellants would confirm the contract. He was a disinterested witness, and there was no reason to doubt his testimony. Further, he is corroborated by the action of appellants. This contract was signed at Sinton, Texas, on May 30, 1945, By letter dated June 1, 1945, appellants purported to confirm the contract signed by their agents as aforesaid. Appellants’ place of business was in Fort Worth. Appellee apparently lived in Sin-ton, or that seemed to be his post office address. There can be no question but that the purported letter of confirmation varied from the contract evidenced by the memorandum of May 30, 1945, heretofore copied herein. [28] On June 4, 1945, or at least immediately on receipt of the purported confirmation, ap-pellee wired appellants in substance that confirmation did not meet the terms of tentative contract and that his offer of sale was withdrawn. Appellants on June 9, 1945, sent appellee a letter substantially confirming the memorandum aforesaid of May 30, 1945. Mutchler testified that some time in July appellee had a conversation with him wherein it was agreed that appellee would deliver to appellant the maize described in the contract of May 30, 1945, except that he would not be required to deliver any maize of over 15% moisture content. Ap-pellee did not deliver any grain to appellant. It appears from the evidence that ap-pellee from June 27, 1945 to June 29, 1945, delivered to the Farmers’ Grain Company some 216,000 pounds of maize; between June 15, and June 29, 1945, to the Eastern Seed & Elevator Company 296,415 pounds. Of this last amount 97,710 pounds the moisture content was 15% or less. Where appellee obtained this grain does not appear. There is no evidence that appellee had any maize growing in the state of Texas, no evidence that he purchased any acreage in the state of Texas on which maize was grown by others. It does appear that he told Mutchler that he had 250 acres of maize. Mutchler thought that some of this appellee had grown himself and some purchased from others. There was evidence that the market value of maize at Sinton of 15% moisture content or less was $2.27 per cwt. on the cars, that it cost 8% to load same on the cars when delivered at Sinton. In substance, appellee stated in his motion for an instructed verdict that no valid contract was consummated, in that as a condition to same coming into existence as a contract same was to be confirmed by appellants, that appellants refused to confirm the contract and appellee accepted their rejection and withdrew his offer to sell; that the testimony failed to show that the minds of the parties ever reached an agreement; that the evidence failed to show how much, if any, defendant raised on 250 acres in excess of a hundred tons previously sold by him. It is thought that the correct disposition of this appeal depends upon the application of a few elementary principles of the Law of Contracts. Before attempting to apply same it is thought proper to make a formulation thereof. Where one party to a purported contract acts through an agent and such agent or the other party exacts as-a condition that the contract be confirmed by the agent’s principal, a failure or refusal to confirm by the principal, at the election of the other party terminates the contract. Perhaps it would be more exact to say that no contract comes into existence. Where a party has a right or duty to confirm or reject a contract, a purported confirmation varying in terms from the proposed contract is not a confirmation but a rejection of the contract. A principal refusing to confirm a contract made on his behalf subject to confirmation cannot claim under the purported contract where the other party accepts such rejection. He cannot, after the other party accepts the rejection by attempted confirmation, thereafter give validity to the contract. Flomerfelt v. Hume, 11 Tex.Civ.App. 30, 31 S.W. 679. An agreement to be binding must be definite and certain. 12 Am.Jur. p. 554, par. 64; Yerion v. Allison, Tex.Civ.App., 242 S.W. 270; Wolert v. Arledge, 4 Tex. Civ.App. 692, 23 S.W. 1052; 10 Tex.Jur. pp. 175-178, par. 103; 37 Tex.Jur. p. 101, par. 19. The evidence fails to show whether or not the maize referred to was threshed or unthreshed on May 30, 1945. Fails to show where same was located. Fails to show the location of the 250 acres the parties had in mind. Without some identification of this 250 acres it would be impossible to determine the obligation of the parties. We here deal with an executory contract for a sale, not a sale. Even though conceivably a contract may be rendered certain and definite by evidence, unless such evidence be offered establishing the requisite certainty it is unenforceable. As has been stated, the undisputed evidence was [29] that this contract was to be confirmed by appellants, that is, the contract evidenced by the memorandum of May 30, 1945. The evidence is likewise undisputed that the letter of June 1st was not a confirmation of the purported contract of May 30, 1945. It was tantamount to a rejection, rather than a confirmation. Appellee accepted the rejection before June 9, 1945, the date of the letter of appellants confirming the purported contract of May 30, 1945. There can be no doubt that there was no meeting of the minds of the parties on the terms of the purported contract of May 30, 1945. As was stated, Mutchler testified that appellee agreed to deliver the maize described in the contract of May 30, 1945, except that he was only to deliver maize of moisture content of 15% or less. A diligent search of the statement of facts fails to show how much maize appellee was bound to deliver under the purported contract. Maize may be a fungible, but it cannot be contended that plaintiff was bound to deliver anything but an excess over 100 tons produced on 250 acres. What 250 acres of land the parties had in mind does not appear from either the pleading or the evidence. Whether the land is situated in Texas or the Republic of Mexico or elsewhere does not appear. If appellants could by the evidence have made the extent of appellee’s obligation definite and certain, they utterly failed to do so. The circumstance that appellee did deliver certain grain to other parties is too weak to justify an inference that same was from the 250 acres mentioned in the contract. In that the evidence tends to affirmatively establish that the minds of the parties never met on any particular 250 acres. Mutchler testified: “He said there were 250 acres of grain, some that he had raised himself and some that he had purchased from different farmers, and that he had already sold 100 tons.” It is thought that under the testimony if agreement there was the same was too indefinite to be enforceable. Rather the evidence fails to show a definite and certain contract. No reversible error appearing, it is ordered that the judgment be in all things affirmed.