Hopkins v. Racine Malleable & Wrought Iron Co.

Dodge, J. No principle is more elementary in tbe law of contracts tban that consideration is essential to their validity, and that a wholly executory contract for mutual acts is of no binding force upon one party unless and until the other has become bound thereby. In such a contract mutuality is an essential of validity. Dodge v. Hopkins, 14 Wis. 630; Moulton v. Kershaw, 59 Wis. 316, 18 N. W. 172; Teipel v. Meyer, 106 Wis. 41, 81 N. W. 982. That rule has received modification to the extent that an executory promise by one party may be construed to evince his intention to make a continuing offer of such performance which, when accepted, in whole or in part, by the other party, becomes a contract pro tanto to the extent of the acceptance. Such offers are very common in the mercantile world and are a basis on which mercantile business is largely transacted. Being in a sense a departure from the fundamental principle of the necessity for consideration, in the form of mutuality or otherwise, the exception is carried no further than to bind the offerer so long as he sees fit to keep the offer open. In the present case the promise of the defendant to furnish castings was wholly executory and upon condition that the plaintiff should do acts in the future. There is not the slightest suggestion that the plaintiff ever, even in the most informal manner, bound himself to the conditions expressed in that offer. With him it was entirely optional at all times to purchase.his supplies of irons wherever he chose. True, as he from time to time ordered a shipment from the defendant he became bound to pay for such shipment according to the terms of the offer, and then, for the first time, did defendant become bound to fill his order. This is the vital and fundamental distinction between the present case and the authorities from this and other courts cited by the respondent. In each of those cases there were express words on the part of the purchaser binding him to performance upon his part to the full extent responsive to [587] tbe offer made, albeit tbe promise was in some of tbe cases ambiguous. Shadbolt & B. I. Co. v. Topliff, 85 Wis. 513, 55 N. W. 854; Walsh v. Myers, 92 Wis. 397, 66 N. W. 250; McCall v. Icks, 107 Wis. 232, 83 N. W. 300; Excelsior W. Co. v. Messinger, 116 Wis. 549, 554, 93 N. W. 459; W. C. Taylor Co. v. Bannerman, 120 Wis. 189, 97 N. W. 918;. Eastern R. Co. v. Tuteur, 127 Wis. 382, 105 N. W. 1067; Minn. L. Co. v. Whitebreast C. Co. 160 Ill. 85, 31 L. R. A. 529; Lima L. & M. Co. v. Nat. Steel C. Co. 155 Fed. 77, 11 L. R. A. n. s. 713. In each of these cases were promises by tbe purchaser to be bound by tbe contract, either by acceptance or otherwise. This element of consideration in tbe form of mutuality being wholly lacking in tbe instant ease, it is unnecessary to consider many other objections, urged to tbe validity of a contract resulting from defendant’s letter of March 10, 1905. We deem it clear that that letter at most constituted a continuing offer to furnish castings upon payment of tbe specified price and might be revoked at any time by tbe defendant, except as to orders thereunder prior to tbe revocation. Tbe letters referred to in tbe statement of facts of April, October, and December, 1906, are open to no construction but that of revocation of tbe offer, except to tbe extent of the irons then manufactured and on band, so that tbe plaintiff could not by an order on December 27th impose upon tbe defendant any duty to manufacture for him other castings at tbe .price named in tbe offer of March 10, 1905, and therefore is entitled to no damages for refusal so to do. By the Court. — Judgment reversed, and cause remanded with directions to dismiss tbe action.