Wilkinson v. Williamson

SOMERVILLE, J. — The contract for the sale of the timber in controversy in this case is shown to have been express, the terms being fully stated between the contracting parties at the time of the transaction. The controversy is as to which one of the two alleged prices, differing from each other in amount, was agreed upon by stipulation. Under this state of facts, it was not competent to determine the matter by evidence of custom, or usage. “ The true office of mercantile usage,” as said by Mr. Parsons, “ is to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contracts, arising not from express stipulation, but from mere implications and presumptions, and acts of a doubtful or equivocal character; or to ascertain the true meaning of particular words in an instrument, when these words have various senses.” — 1 Parsons on Contr. (6th Ed.) 547*. Evidence of usage and custom is not permitted, in other words, “ to prevail over and nullify the express provisions and stipulations of the contract.” — 1 Add. Gout. § 244. “ It may be,” as said in a late case, “ that the very object of the contract was to avoid the effect of such usage, and no evidence of usage can be admitted to contradict the [express] terms of a contract, or control its legal interpretation and effect.” — Brown v. Foster, 113 Mass. 136 ; Lawson on Usages & Cust. p. 371, § 187; p. 417. The evidence admitted by the court should have been excluded, on the objection taken by the appellant, and this error must operate to reverse the judgment. It is a familiar rule of lawr, that there can be no contract without a concurrence of the minds of the contracting parties, by which their mutual assent is given to some particular thing. This assent must be entire and adequate, comprehending unconditionally the whole, and not merely the part of the proposition suggested as the basis of the contract. — 1 Parsons Oont. 476-7*; 1 Whart. Cont. § 4. This principiéis, of course, just as applicable to sales of personal property, as to contracts of any other nature. Unless all the terms of the proposed contract of sale, including the price when specified, are agreed to, the contract can not be said to be complete. It is true, that a contract [168] of sale may be complete and executed, without specifying the price of the article sold. This is the case where the price is either not stated, oris left open for future adjustment by consent, the property being delivered with the intention to complete the sale. If there is a failure to agree, a fair and reasonable price may be recovered on a quantum valebat, by verdict of a jury. — Shealy v. Edwards, 73 Ala. 175 ; 1 Benj. Sales, § 85. But, where the intention of the vendor is to sell at a specified price, and the intention of the vendee is to buy at another and different price, which was specified by him at the time of delivery, and the minds, of the contracting parties, through mutual misunderstanding, have failed to agree upon the same proposition as to price, there can manifestly be no' legal contract of sale, because each has assented to a separate and distinct contract, and not to one and the same. It follows that, in cases of this character, either party may rescind, upon the discovery of the mistake, by offering to return the price on the one hand, or the property on the other, within a reasonable time. Where the thing delivered to the vendee, upon the supposition of a sale, has been lost, consumed, or otherwise placed beyond his control by his own fault, so that the parties can not be put in statu quo, it would seem that the vendee would be liable for a reasonable price. This would be upon an implied, and not upon an express contract, however, as upon a quantum valebat. — 1 Benj. Sales (Corbin’s Ed. 1884), § 85, note 1 ; Wittkousky v. Wasson, 71 N. C. 451. An application of these principles makes it clear, that the first and second parts of the charge of the court, to which exceptions was taken, are misleading, and should not have been given, in the exact form in which they appear. « There was no error in the charge of the court, as to the influence which the illiteracy of a witness should exert upon his credibility. The fact that a witness can not read or write certainly does not detract from or impugn his honesty. The fact that he is learned in letters does not, of itself, add anything to the probability of his veracity. Such, at least, is the rule where the facts testified to are equally within the comprehension of the two classes of witnesses. The mere retention by the plaintiff, of the price paid him for the timber, can not be construed into a ratification of any other contract than such as was actually made, or may be implied by law in the absence of an express agreement. The act of retention is perfectly consistent with the defendant’s theory of the contract of sale, as well as with the plaintiff’s. If there was no sale, because of a failure to agree upon any price, then no title to the timber vested in the vendee; and upon his offer to rescind, [169] the plaintiff would be liable to him for the money received on an implied assumpsit. The first two charges requested by the defendant were properly refused. The third should have been given, under the rule which we have announced above. Reversed and remanded.