Morrill v. Tehama Consolidated Mill & Mining Co.

By the Court, Eaell, J.: This action was brought by plaintiff to recover damages for the breach, on the part of the defendant, of a contract which the plaintiff claims was entered into between him and the defendant on the 3,2th day of September, 1872, and if he is entitled to recover, it is upon the theory that the contract declared on was consummated by the parties. The action was tried by the court without a jury, and judgment entered for the defendant. The plaintiff moved for a new-trial and assigned in his statement as grounds therefor, the following: “The evidence is insufficient to justify the findings of the court and the conclusions of law and the judgment thereon, in that the evidence shows that the contract between the parties plaintiff and defendant was duly executed, and that the giving of the bond formed no part of said contract; and that the findings and judgment are against law, in that the court finds that the non-execution — 132 — of tiie bond bj Morrill prevented tbe contract from ever becoming of binding effect.” The court overruled'the motion, and this appeal is from the judgment and the order overruling the motion for a new trial. The counsel for appellant, in his brief on file, says, “ The findings of fact are satisfactory,” and from our examination of the evidence presented by the record, we are of opinion that the findings are as favorable to appellant as the evidence will justify; hence the question for our consideration is, did the court err in its conclusion of law from the facts found? The facts found by the judge of the court below are as follows: “In the month of September, 1872, the defendant* a mining corporation of California, was engaged in business in "White Pine County, Nevada; its agent, Archibald McDonald, had power to make in its behalf a contract, such as that alleged .in the complaint. At the time mentioned, the plaintiff and defendant, by its agent McDonald, agreed upon the terms of a contract for the delivery by Morrill of three thousand five hundred cords of wood at the mill of defendant then in process of construction. The terms of said agreement were precisely those set forth in the complaint herein. They furthepagreed that the contract should be reduced to writing, signed by both parties, and deposited with Duren for safe keeping. At the same time McDonald required that Morrill should give a bond with two sureties, who were agreed upon, in the penalty of five thousand dollars, conditioned for the faithful performance of the contract. They employed a lawyer, Waters, to draw up the writings. He made a rough draft of the contract in the terms stated in the complaint, read it to Morrill and McDonald, who both assented to it fully, and at their request made a fair copy, which was on the same day, September 12, 1872, signed by defendant by its agent McDonald, who left it with Waters to be signed by Morrill, and afterwards deposited with Duren. Waters at the same time drew a bond which Morrill procured to be executed by one of the sureties agreed upon, but not by the other. Morrill did not sign the contract, but immediately com — 133 — menced bis preparation to commence delivering wood. While so engaged, Waters, in whose possession the partly executed contract and bond remained, departed from the State September 16, leaving the papers in his office, from which, on that day, the contract was removed by a clerk of McDonald, for the purpose of copying it. Later in the same day Morrill went to Waters’s office for the purpose of signing the contract, but could not then nor ever since obtain possession of it. Being unable to find the contract, he resumed preparations for delivering wood. Four or five days later McDonald departed from the State under the impression that Morrill had abandoned the contract, led to that conclusion by the failure of Morrill to furnish the bond. He was absent during the whole time Morrill was engaged in delivering wood as hereinafter mentioned. Prior to this, however, and while he was expecting tbe contract to be completed, he had given directions to his subordinates at the mill where to pile the wood to be delivered by Morrill. Shortly after McDonald’s departure, Morrill commenced delivering wood at the mill, where it was received and piled by McDonald’s subordinates, in obedience to his directions given as aforesaid. On the 12th day of October, a month after the date of contract, Morrill had only delivered about two hundred cords of the wood instead of the four hundred cords stipulated to be delivered monthly. But no damage occurred to defendant by reason of his failure in this respect, and no complaint was made on account of it. McDonald’s subordinates continued to receive and pile the wood, and by the 23d of October Morrill had delivered nine hundred and sixty cords. On that day defendant notified him to stop delivering wood; that it refused to receive any wood of him, or to pay for any wood delivered or to be delivered. Morrill hereupon stopped delivering wood and commenced this action.” From the facts thus found w.e think, independent of the giving of the bond, that the contract declared on was never completed. It is true the parties verbally agreed to the terms of the contract as stated in the complaint, but it was — 134 — to be reduced to writing and signed by both parties. They employed Waters to prepare tbe contract according to tbe terms thus agreed upon, wliicli be did, and it was signed by McDonald as agent for defendant, but tbe plaintiff, for wbat reason does not appear, failed to sign it at tbe same time. True, four days afterwards, and after Waters bad departed tbe State, be went to Waters’s office for tbe purpose of signing it, and failing to find it, proceeded to act under its terms. But tbe contract tbus prepared was to be signed by botb parties; it contained mutual obligations, eacb of wbicb being tbe consideration for tbe other, and as no time was stipulated in wbicb it was to be signed by either, tbe legal presumption is, that tbe signing thereof was to be concurrent, and as tbe plaintiff failed tbus to sign it, no reciprocal assent thereto can be implied. “There is no contract unless tbe parties thereto assent; and they must assent to tbe same thing, in tbe same sense.” (1 Parsons on Con. 475.) It is essential to tbe existence of every contract, that there should be a reciprocal assent to a definite proposition, and when tbe parties to a proposed contract have themselves fixed tbe manner in wbicb their assent is to be manifested, an assent thereto, in any other or different mode, will not be presumed. Notwithstanding tbe instrument declared upon was fully executed on tbe part of defendant, the contract was still incomplete, and neither party bound thereby. “A contract purporting to be made between several parties, containing mutual covenants, of wbicb those of one party are tbe consideration of tbe others, must, to be valid, be executed by all, and cannot be enforced against one executing, by another who fails to execute.” (Tewksbury v. O'Connell, 21 Cal. 60; Townsend v. Corning, 23 Wend. 435.) In tbe last-mentioned case, Mr. Justice Bronson, in delivering tbe opinion of tbe court, says: “Tbe defendant is not bound by tbe alleged contract. Although be signed and sealed, tbe execution of tbe instrument was not completed, and it is not bis deed. Wbat are tbe facts when taken in connection with tbe legal principles already considered? A writing inter parks is prepared, by wbicb one party — 135 — covenants for the payment of money, and the other for the conveyance of lands,- — -each of these mutual covenants being the consideration for the other. One party sits down and executes the deed; but the other stops short, and for some cause — no matter what — does not execute the instrument. It is impossible, I think, to maintain, that the party who has refused or neglected to bind himself, can set up the instrument as a binding contract against the other party. There was, I think, a condition, implied from the nature of the transaction, that the signing of one party should go for nothing unless the other signed also. But whether I have assigned the proper reason for the rule or not, the conclusion to which I have arrived, that the party who signs cannot be bound when the execution is thus in-co.mplete, is not only in accordance with the justice of the case, but is well supported by authority. ” The legal principles decided by the Supreme Court in that case are identical with those involved in the one under consideration, and all the cases which we have found, or to which our attention has been called, hold the general rule to be, “that where parties enter into any agreement, and the understanding is that it is to be reduced to writing, or if it is already in a written form, that it is to be signed before it is acted on or to take effect, it is not binding until it is so written or signed.” (Boyd v. Hind, 36 Eng. Law & Eq. 566; Fisk v. Levine, 16 La. Ann. 29; Dodge v. Hopkins, 14 Wis. 630; Townsend v. Hubbard, 4 Hill, 351; Crane v. Portland, 9 Mich. 493.) “In contracts where the promise of the one party is the consideration for the promise of the other, the promises must be concurrent and obligatory upon both at the same time.” (Tucker v. Wood, 12 Johns. 190, 192; Keep v. Goodrich, Id. 397.) But tho rule is otherwise where the consideration is not the promise, but the doing of some act, which being done would constitute a valid consideration; in such case the assent thereto may be shown by doing the act. In the case at bar, the consideration was dependent upon the mutual promises of the parties, and in order to consummate the contract required an assent thereto “in — 136 — the precise terms offered.” The terms of respondent’s offer included not only the signing of the written agreement, but also the furnishing of the bond executed by the two sureties agreed upon; and it was essential to the completion of the contract that respondent’s offer thus made should be met on the part of appellant “by an acceptance corresponding entirely and adequately” therewith; because “it becomes a contract only when the proposition is met by an acceptance which corresponds with it entirely and adequately.” (1 Parsons on Contracts, 476.) Hence we concur in the decision of the court below, “that the contract sued on never became binding on the defendant oh account of the failure of plaintiff to furnish the bond.” But it is claimed by the counsel for appellant that respondent permitted appellant to enter upon the performance of the proposed contract and received part of the wood, and thereby waived the bond and became liable upon the agreement; but it does not appear, from the facts found, that respondent was cognizant of the attempted performance on the part of appellant until after the nine hundred and sixty cords of wood were delivered at the mill; on the contrary, it appears that before any wood was thus delivered, McDonald, who was the only person authorized to represent respondent, had left the State under the impression that the contract was abandoned by appellant, and was absent during the whole time appellant was engaged in delivering the wood. But the rule which declares performance an acceptance of the terms of a proposed contract, cannot be applied in this case. “To render a proposed contract binding there must be an accession to its terms by both parties. A mere voluntary compliance with its conditions by one who had not previously assented to it does not render the other liable on it.” (Johnson v. Fessler, 7 Watts, 48; Ball v. Newton, 7 Cush. 599.) See also the case of Northam v. Gordon (46 Cal. 582), cited by respondent’s counsel, in which Mr. Justice Crockett, in rendering the decision of the court, uses the following language, which is equally applicable to the case under consideration: “The class of cases — 137 — cited by the plaintiff’s counsel, in wbicli an offer by the one party and an actual performance by the other, has been bald to be a sufficient acceptance to uphold the contract, establish a proposition which is not applicable to the case at bar. * * * Gordon failed to register his property or to make the subscription in accordance with the offer. The offer, therefore, was not accepted, and no contract was created. We think the principle governing the case is discussed and correctly defined in the case of Governor, etc., v. Petch (28 Eng. Law & Eq. R. 470). In that case a charitable corporation advertised for bids to furnish certain meats; and it was stated in the advertisement that after a bid was accepted, the successful bidder will have to sign a written contract, etc. The plaintiff’s bid was accepted, and he proceeded to furnish the meats, but failed to enter into the written contract. The action was upon the contract to recover the price of the meat at the stipulated rate; and the court decided that having neglected to enter into the written contract the plaintiff had failed to accept the offer according to. its terms.” The rule thus applied is decisive .of this case. The action is upon the contract. Morrill neglected to sign the written agreement, and also neglected to give the required bond; he consequently failed to accept respondent’s offer according to its terms, and there was, therefore, no contract such as was declared upon. Judgment affirmed.