Bloeker v. Tillman

Martin, J., delivered the opinion of the court. The petition states that the defendant, having taken a lease of a warehouse, proposed to the plaintiff to take charge of it, for which it was agreed the latter should have one-third of the nett profits. The offer being accepted, the contract was reduced to writing by a third person, subscribed by the plaintiff, and delivered to the defendant, who agreed thereto, and promised to sign and deliver it to a third person to keep it. That the plaintiff, depending thereon, entered into his duties and faithfully attended to the affairs of the concern, till he was dismissed by the defendant, who placed the warehouse under the charge of another ; wherefore, he claims damages. The general issue was pleaded. The jury gave a verdict for the defendant as in case of a nonsuit. Judgement was given accordingly, and the plaintiff appealed. The plaintiff’s counsel has contended that he was improperly nonsuited, the action being brought on the parole contract, and the first judge erred in refusing leave to admit testimonial proof of it.- 2. He erred in; refusing testimonial proof that it was no part of the contract that it should be reduced to writing. 3. Also,in excluding the writing,as it was the best evidence of the contract; Until a wriedSby thifsignature of the parties,itismit án inchoate part^ha^the right of recant4. Also, In relenting proof of the partial performance of , ’ , , r J contract by the plaintm. 5.- Undér the Civil-Code, 1755, the plaintiffhad a right to give evidence of the parole contract, notwithstanding it had been reduced to writing, as the writing was not perfected. 6. Lastly, the court erred in refusing a new trial. The defendant’s counsel has urged that the plaintiff was properly nonsuited’,- ashe sued on a written contract, while he did not prove it.- ' The writing was produced, subscribed by the plaintiff only, the defendant not having signed it, was not bound thereby. Till a written contract has the signature of all the parties, neither is bound thereby, and either may recant. The record shows that, at the trial the plaintiff called on the defendant for the document mentioned in the petition, and it was accordingly produced, and the plaintiff asked leave to read it. This was objected to, on the ground that it was an inchoate contract, subscribed by one of the parties, and which had not received its perfection by the signature of the other. The objection was sustained, and the plaintiff took a bill of exceptions. He next offered parole evidence of the contract, on the ground that the writing was not declared upon in the petition as the contract itself, but referred to as containing the evidence of the parole contract. This was objected to, the objection sustained-, and another bill of exceptions was taken. It appears to us, the first judge did not err. The case before him was one in which the parties contemplated a written contract, to be deposited in the hands of a third per-1 son, for their common security; nothing shows in either of them, an intention to be bound by a parole contract. The plaintiff himself subscribed the agreement, and gave time to the defendant to do the like. Till 'the writing was perfected by the signature of all the parties, it was but an inchoate one, and either had the right of recanting. The defendant, in doing so, availed himself of a legal right. The plaintiff might, however, have asked for damages, or required remuneration for work and labor done in a contract, [81] which, without any fault on his part, did not receive its perfection. The judgement being one of nonsuit, does not affect this right. Egnew, for appellant. Farrar and M‘ Caleb, for appellee.- It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed, with costs in both courts.