1 Ga. 220 | Ga. | 1846
By the Court
The action in this case was brought on the following instrument, to wit: “We have this day sold to Jernigan, Lawrence & Co. our entire crop '
Signed, Drury M. Leseur,
F. D. Wimberly.”
This instrument was tendered in evidence by the plaintiffs, to make out their case against F. D. Wimberly — Leseur, who had been also sued, having died. The defendant demurred to the testimony, upon two grounds :
1st. Because the instrument is void, for uncertainty.
2d. Because the instrument is the several, and not the joint, contract of the signers, and cannot, therefore, be sued upon jointly.
The court sustained the demurrer, upon both grounds ; to which decision the plaintiffs in error except; and we think the exceptions well taken, and reverse the judgment.
And first, as to the second ground. There are two contracts on this small paper : one between D. M. Leseur and F. D. Wimberly and the plaintiffs, Jeringan, Lawrence & Co.; and the other between D. M. Leseur and the plaintiffs. The latter is for the sale of Green Sims’ crop of cotton, with which we have nothing to do. The action was brought against Leseur and Wimberly, to recover the loss on the sale of their crop of cotton. The language of the instrument is joint throughout. The words are, we have sold our entire crop (not crops) of cotton ; and we agree to make good, &c. The only inference that we can draw from this paper is, that it is a joint sale of one crop of cotton owned by Leseur and Wimberly jointly. There is not a word importing severalty in it.
This is an agreement for sale of cotton, or rather a contract of sale. We do not find it very fully or technically drawn. A good lawyer would scarcely have left it so uncertain. Yet we think it sufficiently certain to show the intention of the parties, and to be the foundation of this action. A contract is an agreement of two, or more, persons, upon sufficient consideration, to do, or not to do, a particular thing. — 2 Black. Com. 442 ; 2 Kent, 449. Certainty and mutuality are necessary to a valid contract. The assent of the parties must be mutual. A contract must be founded on a consideration : without it, it is nudum pactum; but the least consideration will create reciprocity, and make an agreement a valid contract.— 2 Black. Com., ch. 30, tit. Contract. The rule as to certainty is, that the agreement must be so certain and complete, that each party may have an action upon it.— Chit, on Con. 4. Now, to apply these elementary principles to the agreement before us, premising, yet farther, that its not being signed by the plaintiffs does not make it invalid : the undertaking on the part of the plaintiffs is to pay Leseur and Wimberly nine cents per lb. for their cotton ; the consideration upon which that und'ertaking is founded is the receipt and ownership of the cotton. Now, that is quite consideration enough, in all conscience, to support a contract. Nor can it be doubted but that, after delivery of the cotton to Jeringan, Lawrence & Co., an action would lie in favor of Leseur and Wimberly against them for the price to be paid. The undertaking on the part of Leseur and Wimberly is to make good to Jernigan, Lawrence & Co. whatever loss they may sustain in the sale of the cotton ; that is, to pay them the difference between nine cents per lb. for the cotton and what they may realize upon it. The consideration moving them to this undertaking is the price of the cotton, at nine
We think the paper ought to have been admitted in evidence, and reverse the judgment of the court below.