Dilby v. Corbell

Wood, J., (after stating the facts). In S. F. Bowser & Co. v. Marks, 96 Ark. 113, the appellee wrote appellant as follows: “Please ship me at once one sixty-five gallon oil tank and pump. I bought one of these tanks of you in 1906. Now I would like to have another one.” The question in that case was whether or not the parties had entered into a contract for the sale and purchase of the pump and tank. The court said: “The appellees contend that the contract was not entered into because the price of the article had not been agreed upon, and that on this account there was no mutual assent to one of the essential terms of the alleged contract. The price is one of the essential elements involved in the agreement to make a contract of sale, and there must be an agreement of the parties to the price, either express or implied, before there can be a completion of a sale. But it is not necessary that, the price be expressly stipulated by the parties. If the parties have agreed to all the other elements of the sale and have made no reference to the price, then the law will by implication fix the price, which will be what the article is then reasonably worth.” It is contended by appellant that there was no agreement in this case as to the price of the chattel in controversy, and that therefore there was no executed contract of sale. Even if it be conceded that there was no agreement as to the price, the testimony clearly shows that the vendor, Bobo, and the vendee, Corbell, had agreed to all the other elements constituting the sale, and hence the case at bar is ruled by the case above cited. The appellant’s only witness, Kavener, testified that when he made the alleged purchase for appellant, Bobo said, “Cor-bell contracted for it, but I am not going to wait on him any longer,” thus showing that Bobo recognized the fact that he had made a contract of sale with Corbell. In the above case the court quotes from Mr. Benjamin on Sales as follows: “If nothing has been said as to price when a commodity is sold, the law implies an understanding that it is to be paid for at what it is reasonably worth.” In the cases where the vendor and vendee, having had the price under consideration, differ as to the price that was to be paid, or where there is a mutual mistake as to the price for which the chattel is sold, then there can be no completed contract of sale, because the minds of the parties have not met upon an essential element and completed the sale and purchase. In Cage v. Black, 97 Ark. 613, relied on by the appellant, it was held that there was a mutual mistake as to the price at which the article was offered and accepted. In Summit Lumber Co. v. Shepherd, 102 Ark. 88. 274, the parties differed as to the construction of a written contract which purported to state the method by which the price of the article in the alleged sale was to be ascertained. The appellant also relies upon this case to sustain his contention; but a reading of these latter cases in connection with the facts will discover that they have no application to the case at bar. Here there was no disagreement between the vendor and the vendee as to the price. Even if appellant’s contention in this respect were correct, under the uncontradicted evidence of the appellee, Corbell, an agreement would be implied upon the part of the latter to pay Bobo what the chattels in controversy were reasonably worth. S. F. Bowser & Co. v. Marks, supra. But, in our opinion, the uncontradicted evidence shows that the vendor and the vendee did agree upon the price of $5.00 to be paid for the chattels in controversy. Concerning this Corbell says: “According to our agreement, when I bought the cultivator, I says, ‘Here is your $5.00.' ” This shows that the agreement between him and Bobo was that he was to pay $5.00 for the cultivator. The terms of the contract of sale were agreed upon between the parties, and nothing remained to be done to complete the sale between the vendor and the vendee which was entered into prior to the alleged sale under which the appellant claims title. We are therefore of the opinion that the judgment, under the undisputed evidence, is correct, even though there may have been a mistake as to the verdict of the jury, and it is unnecessary to pass upon that question. Finding no prejudicial error, the judgment is affirmed.