Townsend v. Fisher

By the Court, Hilton, J. It is quite immaterial, for the purposes of this action, what took place at the interview on July 3d, as it is manifest that Mrs. Sturtevant did not consider herself obligated, by anything then said, to retain the rooms for the defendant. The object in calling on the defendant on July 5th, was, in the language of Miss Sturtevant, who appears throughout to have acted as the agent of her mother; “ to bind the bargain.” Before this was considered by her as accomplished, and the rooms secured to the defendant, he was required to pay §10. At this time the only agreement was entered into, by which Mrs. Sturtevant and the defendant considered themselves bound. Its terms are clearly expressed in the receipt, and are not liable to be varied by parol evidence. Wolfe v. Myers, 3 Sand. S. C. Rep. 7; Niles v. Culver, 8 Barb. S. C. Rep. 205, C. C. By it the defendant secured board for himself and lady with Mrs. Sturtevant, not for any specified time, and the §10 thus paid to bind the bargain was to apply on the first week’s board; and, if the board was not taken, the amount paid was to be forfeited. The parties having thus agreed upon a sum in the nature of liquidated damages, that is. the extent of the defendant’s liability. Sedgwick on Meas. of Damages, 397. Another reason might be assigned, if it were necessary, for disregarding the interviews between the parties prior to this written contract being entered into. It is the familiar rule of law, that an agreement, consisting of mutual promises, must be obligatory upon both parties to it, or it will bind neitheChitty on Contracts, 15; Livingston v. Rogers, 1 Caines, 583; Tucker v. Woods, 12 John. 190; Keep v. Goodrich, Id. 397; Efner v. Shaw, 2 Wend. 567; Lester v. Jewett, 12 Barb. 502. Before July 5th, it was clearly optional with Mrs. Sturtevant,, whether she would retain the rooms for the defendant, or not; 52 and, indeed, it seems she did not consider them' taken until the $10, demanded to bind the bargain, was paid. Prior to its payment, there was no obligation upon her part to furnish the defendant with rooms and board; and the alleged agreement upon which a recovery has been had in the court below, was therefore void for want of mutuality. 1 Parsons on Cont. 373. Judgment reversed.