Chunn v. Evans

Wade, J. (After stating the foregoing facts.) We think the learned trial judge undoubtedly erred in overruling the demurrer, since the defendant’s letter dated June 12 was not, in mercantile parlance or in legal effect, a valid and binding offer to sell the [61] peaches at a fixed and certain price per crate. The language used indicates clearly that on June 12, 1913, the defendant thought the crop should net him not less than $1.75 per crate, over and above all commissions, but it does not say or suggest definitely and positively that he would accept this amount per crate even on that date. It appears to be a mere tentative suggestion, intended to draw from the Georgia Fruit Exchange an expression as to the possible price that might be procured for the defendant. It will be noted that the defendant says that the crop he has for sale is the one formerly owned by B. 0. Emery, is in fine condition, etc., and that Mr.' Emery suggested that he write to the Fruit Exchange, stating that the crop was for sale, and that he (Emery) would be willing for the defendant to use “his share of the stock,” or in other words, would transfer the same to the defendant, provided it would seem profitable for the defendant to avail himself of the services of the Fruit Exchange; and the defendant adds that if the Fruit Exchange has “any prospective purchasers in view now,” he “would be glad to negotiate further with” it. The Georgia Fruit Exchange telegraphed to the defendant on the 14th of June, accepting what it construed to be his oiler; and the letter of June 12, the telegram of June 14, and the letter of June 17 are relied upon to show offer and acceptance. The telegram says, “Will accept your offer.” Precisely what that offer was, if it be treated as an offer at all, it would be impossible to determine, since the defendant stated merely his expectation that the crop would net him not less than $1.75 per crate; it nowhere says that he would actually accept this net sum, nor does it suggest how much more than $1.75 the defendant might exact a day or two days later, or, for that matter, one hour or one minute after he had signed and mailed his communication of the 12th. In order to make a valid, binding contract, -it is necessary that the minds of the parties thereto should meet on all its essential elements; and to make a binding sale, all the essential elements to constitute such a contract must be present. There must be not only an identification of the thing sold, but an agreement as to the price to be paid, and consent of the parties. Civil Code, § 4106. Had the defendant said in his original letter that he would accept $1.75 per crate net, and had the Fruit Exchange accepted this offer with due promptitude, this would have constituted an agreement as to [62] the price, and would have shown the necessary assent of’the parties, but where one party merely says that he has articles for sale which he expects to net him a certain price, and adds that he will be glad to “negotiate further,” it indicates merely what is at the time his opinion as to the value of such goods or articles. To write one, for instance, that the writer has on hand 500 bales of cotton for sale, which he expects to realize for him not less than 10 cents per pound, over and above freight or broker’s commissions, will not bind the writer to accept the price suggested, when he does not thereafter see fit to do so. There are several questions referred to in the briefs of counsel which would be legitimate subjects for determination under the demurrer filed, but since the effect of our construction of the letter from the defendant practically amounts to a final determination of the case in his favor, no useful purpose would be served in extending this opinion. Judgment reversed. Roan, J., absent.