McGowin Lumber & Export Co. v. R. J. & B. F. Camp Lumber Co.

MAYFIELD, J. Appellee sued appellant in assumpsit. Tbe complaint on wbicb tbe case was tried consisted of four counts, numbered from 2 to 5, inclusive. — 36 — Each count claimed damages for the breach of what is claimed to be a contract of sale of lumber. (1) The only contract attempted to be set up in any one of the counts is a letter written by appellant to appellee, which, omitting the description of the lumber claimed to have been sold or contracted to be sold, is in words and figures, as follows: “Mobile, Ala., March 1st, 1910. “Dear Sirs: Please enter our order for [here follow quantities and specifications of the lumber desired]. Price: $15.50. To be shipped sixty (60) days. Terms: Cash less 2% 10 days. Prices-are f. o. b., f. a. s. vessel Clarabelle. “See that this is put on B/L. “Mail invoice and bill of lading (in duplicate) to us as soon as shipped. “Yours very truly, “McGowin Lumber & Export Co., Inc., “W. H. Buck. “To R. J. & B. F. Camp Lumber Co., White Springs, Fla. ' “Order No. ‘Aloft.’ ” There was no attempt to allege the legal effect of the ■contract. Each count claimed damages as for the breach of a contract in writing, “in substance as follows,” and then the letter is set out in hsec verba, with no reference to any other contract, and no allegation, supplementary or in the way of an innuendo, as to the effect or meaning of the letter. There is no allegation, nor attempted allegation, that plaintiff ever accepted the proposed offer of defendant to purchase, or that this letter Avas ever answered in writing or orally. Count 2 contained the additional-allegation that defendant waived the stipulation in the letter that the delivery should be made within 60 days. Count 5 contained — 37 — the further allegation that: “Plaintiff further avers that the defendant, after the execution of said contract, wrote to the plaintiff on the 2d day of March, 1910, in words and figures as follows: ‘In regard to the time of delivery would state that we put on the other sixty days, and would like for you to advise us in about two weeks’ time whether you will get the cargo out within that time; this for the purpose of chartering. We, of course, would give you fifteen days longer, if necessary, but must known in time, so that we can effect a charter.’ “Plaintiff further avers that on the 7th day of March, 1910, defendant wrote to the plaintiff as follows: ‘In regard to chartering, we wish you would — say about 20th to 25th of this month — let us know what you then estimate will be the right time for a vessel to report. Sailing vessels are -getting very hard to charter, and we would like as much notice as possible, but in this instance we do not want vessel to' report until you are well satisfied that you will have the order complete.’ ” Each count contained appropriate allegations as for breaches, in that the defendant refused to furnish a vessel, or refused or failed to accept the lumber claimed to have been contracted to be bought. There were demurrers to each count, and, the same being overruled, the defendant filed eight pleas, seven of Avhich were special. To these special pleas plaintiff demurred, and, the demurrers being overruled, issue was joined. The trial resulted in verdict and judgment for the plaintiff. From the judgment defendant prosecutes this appeal, assigning for error the rulings on the pleadings above set forth. There is no bill of exceptions, and the appeal is on the record proper. The trial court was in error in overruling the defendants demurrers. Each count of. the complaint was — 38 — bad, and tbe demurrer pointed out one or more defects as to each count. In the present state of tbe record it is unnecessary for us to decide whether or not any one of tbe counts would support tbe judgment rendered; tbe defect Avas pointed out by the demurerr, and tbe trial court should have sustained tbe demurrer. Each count is palpably' defective in that it declares as for tbe breach of a contract, and yet fails to show that any contract existed between tbe parties. Tbe very most that any one’of tbe counts shows is that defend- and wrote a letter or letters to plaintiff proposing or offering to purchase a certain quantity of lumber, on certain terms, or conditions, at certain times, but there is no allegation or attempted allegation that plaintiff ever answered tbe letters either orally or in writing. There is no allegation whatever that tbe plaintiff ever accepted tbe proposed offer, or ever did any act indicating an intention to accept or to bind itself to do what tbe defendant’s letters proposed for it to do. Tbe allegation that plaintiff was ready, willing, and able to have tbe lumber ready for delivery is in no sense an allegation of acceptance. If tbe plaintiff accepted tbe offer, it was its duty to notify tbe defendant of the fact, by some word, act, or deed. There is no allegation that tbe plaintiff ever did any act, or said any word, indicative of acceptance, or agreeing to bind itself by tbe terms offered in defendant’s letters, or by any other contract. Tbe utmost that any count shows is that defendant wrote a letter proposing to buy lumber from plaintiff, but failed or refused to do or perform tbe promise. This is clearly not sufficient to support a cause of action. It shows no contract or contractual relations between tbe parties. Tbe rule of pleading in such cases is well stated by Justice Dargan in Jones v. Powell, 15 Ala. 824: “In declaring on con — 39 — tracts, the declaration must show a binding agreement between the parties, which has been violated. If a valid contract is shown, and' the consideration is concurrent, that is, if the promise of the one is the consideration of the promise of the other to do a certain thing at the same time, the plaintiff must aver a readiness and willingness on his part to perform the promise. — Chit. Plead. 296; Porter v. Rose, 12 Johns. [N. Y.] 209 [7 Am. Dec. 306]; [Pennsylvania, D. & M. Steam Nav. Co. v. Dandridge] 8 Gill & J. [Md.] 248 [29 Am. Dec. 543].” The rule is thus stated in Cyc. (volume 9, p. 712) : '“In declaring on a contract, the declaration, complaint, •or petition must show a binding agreement between the parties, and must state facts to show that the defendant is under a legal obligation or duty to the plaintiff. An averment that by reason of a contract it became the duty of the defendant to do certain acts is insufficient. The facts must be stated from which the duty arose.” The following propositions of law, applicable to the letters claimed in this case to constitute a contract, are well settled by the decisions of this court, arid show that such letters, of themselves, did not constitute a contract: (2) It is indispensable to the validity of a contract that it should be mutually obligatory upon both parties, or it will be binding upon neither. — Bank v. Steele, 10 Ala. 925; Wilks v. G. P. R. R., 79 Ala. 180; Evans’ Case, 78 Ala. 345; Borst v. Simpson, 90 Ala. 373, 7 South. 814. (3) All contracts founded upon mutual promises between persons of full age must be obligatory upon both parties, so that each may have an action upon it, or neither will be bound. The whole doctrine rests, though, — 40 — mainly upon the absence of a consideration to support the promise. — Evans v. C., S. & M. Ry., 78 Ala. 341. In order to constitute a contract, there must be a concurrence of minds of both parties as to the same-thing. — Chambliss v. Smith, 30 Ala. 366; Sanford v. Howard, 29 Ala. 684, 68 Am. Dec. 101; Hodges v. Sublett, 91 Ala. 588, 8 South. 800; Hammond v. Westchester, 82 Ala. 470, 2 South. 892; Smith v. Ingram, 90 Ala. 529, 8 South. 144; Linn v. McLean, 80 Ala. 360. (4) A mere proposal or expression of a desire to do-a certain thing does not constitute a contract. — Lakeside Co. v. Dromgoole, 89 Ala. 505, 7 South. 144; Kenan v. Holloway, 16 Ala. 53, 50 Am. Dec. 162. Thus, A. having proposed to exchange horses with B., and pay a sum certain as difference, which proposition B. reserved the privilege of determining upon by a certain day, and before that day A. gave notice to-- B. that he'' would not make the exchange, it was held thereby the.-. proposition was withdrawn, and that B. had no cause-of action against A. for the recovery of the. difference offered to be paid. — Eskridge v. Glover, 5 Stew. & P. 264, 26 Am. Dec. 344. (5) If the letter in question could be said to constitute a contract, or if it should be aided by other alie-., gations showing an acceptance, it is still uncertain and"; indefinite in its terms. The letter states that the prices ' to be paid are f. o. b., f. a. s. It is difficult to understand' what is meant by this. It is on its face inconsistent “F. o. b.” implies that the seller must incur the expense of loading the lumber onto- the vessel; while “f; a. s,” implies that the seller is only to place the cargo alongside, of the vessel, within reach of her tackle. Which of these conditions must control? If only one must be complied with, which one? Is there any option to comply with the one or the other? If so, which — 41 — one? and who has the option, the vendor or the purchaser? The complaint is wholly silent" as to these matters. How could the damages be ascertained in this case, without determining which one of these provisions was to be complied with by the plaintiff? Does not such a provision render the contract — if such it can be called —too indefinite and uncertain to support a judgment for anything more than nominal damages? Correspondence agreements and arrangements between parties more definite and certain than this, even after partial execution, have been held too uncertain to support a judgment for damages. See Christie, Lowe & Heyworth v. Patton, 148 Ala. 324, 42 South. 614, and cases there cited and reviewed. Each of the defendant’s special pleas seems to state a good defense to any possible cause of action attempted to be stated in the complaint ; but we do' not now rule on the demurrer thereto," as neither count, as now framed, is good, and, when amended so as to state a good cause of action, the general issue might then raise most of the questions attempted to be set up in these special pleas. Reversed and remanded. Anderson, C. J., and Somerville and Thomas, JJ., concur.