117 Ala. 480 | Ala. | 1897
The action, in which the appellees were plaintiffs and the appellant was defendant, is brought to recover damages for an alleged breach of a contract by which the defendant employed the plaintiffs to .erect for him two brick houses in the town of
The fact is conceded, and if it be not is manifest, that prior to the correspondence in writing passing between the parties, the verbal discussions and negotiations had not resulted in the making of a contract. The question hinges on whether a contract may be deduced from the writings when read in the light of the attendant circumstances.
The defendant was a resident of Chattanooga in Tennessee, owning unimproved lots in the .town of Ozark,, upon which he contemplated the erection of brick storehouses. The plaintiffs were contractors residing in Ozark, and while on a visit to Ozark in December, 1890, on inquiry, the plaintiffs furnished him with plans ancb specifications, and estimates of the costs of the building of the houses, with which he expressed satisfaction, and requested the plaintiffs to correspond with him. On the 18th February, 1891, the plaintiffs opened the correspondence by two letters of that date addressed to the defendant. The first of these letters announce that the plaintiffs had decided that forty-five hundred dollars was as low as they could build the house and do an honest job, and expressed the wish to hear soon from the defendant. The writer adds a postcript stating that on the day before they had commenced making brick, and in praise of the quality of the brick. The second letter contained a drawing of the front of the building, and is descriptive of the house proposed to be built and of the work to be done by the plaintiffs. The defendant replied on the 21st February, acknowledging the receipt of the letters, pointing out various omissions in the work to be done, in the specifications of the plaintiffs, concluding by saying that he would go to Louisville soon and when he made necessary arrangements the plaintiffs would hear from him. On the 25th February, the defendant .wrote, saying he had made the necessary arr rangements to build, “and shall accept you! bid and give you the contract, provided you agree to make those various alterations and additions mentioned in my last letter!'" As it will takb about’ a’iiiontli beforeTcan come
It is an elementary principle, that there can be • no valid contract without the mutual assent of the parties— their minds must meet and concur as to all the essential elements the contract involves ; as to the subject matter, and as to their respective rights and duties.—Hodges v. Sublett, 91 Ala. 588. Subjecting this correspondence to this test, it is impossible to deduce a contract, an agreement by the parties as to its essential elements. Can it be said, the defendant had determined upon the precise character of the houses he would construct? If so, what were the dimensions? Were they to be in accordance with the plans the plaintiffs had submitted, Incorporating the alterations and additions the defendant suggested in his letter of February 25th? Or were they to be constructed one story high, as he suggested in the letter of March 10th? What sum was the defendant to pay, and when was it payable? These are all inquiries upon which there must be an explicit answer deduced from the correspondence, or from it there can not be deduced a contract. The fact is, as is apparent from the correspondence, that while the defendant, having made his monetary arrangements, had determined to build on the lots, he had not -determined the character of the buildings, and hence, he informed the plaintiffs in the letter of February 25th, which bears more resemblance than any other, to an acceptance of their proposals, that when he came to Ozark, they must make a written contract. The principle is well settled, that when parties intend that an oral agreement shall be reduced to writing, as the evidence of the finality and results of their negotiations and discussions, until the writing is executed, the transaction remains incomplete— there is nothing binding on either party, and either may abandon all further negotiation or discussion.—Hodges v. Sublett, 91 Ala. 588, supra; 3 Am. & Eng. Encyc. Law, 854-55; Sibley v. Felton, 156 Mass. 273; Winn v. Bull, 7 L. R. Ch. Div. 29. Without indulging in any extended analysis of the correspondence, the plaintiffs by the letter terminating it, seem to recognize the real relations existing between them and the defendant, when they request him, at the instance of Mosely & Faust, to
The result is, the court below erred in the refusal of the general affirmative instruction ■ to find for the defendant, and this conclusion renders unnecessary a consideration of other questions presented by the assignment of errors.
Reversed and remanded.