Bashinski Bros. v. Lake

Hill, C. J. (After stating the foregoing facts.) In repeated rulings of the Supreme Court construing instruments similar in character to this contract, it was held that they were unilateral and lacking in mutuality, and therefore were not binding upon either party. The contract does not contain any obligation on the part of Bashinski Brothers to take the cotton, if tendered by Lake at the time and place specified in the contract. Lake, in consideration of $1 cash in advance, agreed to deliver the cotton, but the Bashinskis did not agree to accept it when delivered. The instrument alleged to be a contract is very similar in terms to the instrument sued upon in Sivell v. Hogan, 119 Ga. 168 (46 S. E. 67). In that case the contract was under seal, and therefore imported a consideration, yet the Supreme Court held it to be unilateral, because, although Sivell h‘ad signed the contract agreeing to deliver to Hogan, at the time and place stated and at a price named, certain cotton therein described, Hogan did not agree, in the contract or otherwise, either at the time the alleged contract was signed or thereafter, to receive and pay for the cotton, and that the right of Hogan to demand an enforcement of the obligation depended upon his doing some act prior to the time fixed for delivery which would bind him to pay in the event of delivery. See, also, Simpson v. Sanders, 130 Ga. 265 (60 S. E. 541); Mallet v. Watkins, 132 Ga. 700 (64 S. E. 999, 131 Am. St. Rep. 226), and many cases .cited in both of these opinions. We are clear that under these rulings the instrument sued upon was, for the reasons stated, unilateral, and not enforceable as an executory contract of purchase and sale. It is true that the contract in this case was signed by.both parties, but this fact of itself does not make the contract one of mutuality. The instrument, to be a valid contract and mutually binding, must contain mutual agreements, or mutual promises, or a mutual consideration. In the cases of Harrison v. Wilson Lumber Co., 119 Ga. 6 (45 S. E. 730), and Cooley v. Morse, 123 Ga. 707 (51 S. E. 625), the instruments alleged to be contracts were signed by both parties. In the latter case the Supreme Court says: “It is true that the in 355 strument sued on begins witli the words, ‘This agreement made this day between A. J. Morse and J. L. Cooley/ and is signed by both parties. But Cooley nowhere agrees or promises to do any act, or binds himself in any way. He does not agree to take the lot, or to pay the purchase price” — just as in the present case Lake agrees to. deliver, but Bashinsld Brothers do not agree to receive or to pay for the cotton. The instrument sued on in this case was simply an option. It bound Lake, in consideration of the sum of $1, to sell the cotton; but it does not contain any counter obligation to buy on the part of Bashinski Brothers. In other words, it amounted to no more than an offer or proposal of sale. There is no allegation in the petition that this option was exercised by Bashinski Brothers. If Bashinski Brothers had accepted the option it would have been binding upon Lake; and as an option it was irrevocable until the expiration of the time agreed upon by the parties thereto for the performance of the contract, and if, before the date of performance, it had been accepted by Bashinski Brothers, or they had done any act indicating an acceptance by them of the contract, it would have made the contract complete. Of course, suing on the instrument after the expiration of the time for acceptance was not sufficient for this purpose, because the suit shows that the defendant, Lake, had abandoned the contract or violated it, and a suit for damages could not amount to a closing of the contract alleged to have been already rendered impossible of performance by the defendant. Cooley v. Morse, supra. The allegations of the petition in the present case are so clearly and fully controlled by the decisions of the Supreme Court above cited, especially the decisions in Simpson v. Saunders and Sivell v. Hogan (the contract in these cases being almost identical in terms with that under consideration), that it renders any further discussion of the question unnecessary. We therefore conclude that the court did not err in dismissing the petition. Judgment affirmed.