28 Pa. Super. 91 | Pa. Super. Ct. | 1905
Opinion by
The plaintiff, through his solicitor, procured the following order:
“Mechanicsburg, Pa., December 30,1902.
“Glen-Brothers, Nurserymen,
“ Rochester, N. Y.
“ You will please have dug and furnish me. the following nursery stock for the improvement of my property, for which I am' responsible, and for which I agree to pay you, or your delivery • agent, the prices set opposite the respective articles, amounting to $123.50 in cash, on delivery at my residence, in*93 the month of April or May, 1903. Should any part be omitted, the price of such shall be deducted. The stock when de-' livered shall be in a healthy and thrifty condition. I agree that this order shall not be subject to countermand.
“ Standard apple and pear trees to be not less than' five feet high, cherry and plum trees not less than four and a third feet.All stock that fails do live, except evergreens, to be replaced at one-half price at next delivery in my town, provided you are notified by August 1st following the planting and said notice is accompanied by this contract.
' “ I hereby admit the correctness of the written names and description of the articles within ordered and further that this contract, a copy- of which I have, covers all terms, conditions or agreements between your agent and myself in relation to this contract.
(Purchaser’s signature) “ Mbs. J. H. Kolleb.”
Then follow the various items with prices attached, aggregating $123.50. This and two like orders for smaller sums constitute the claim of the plaintiff.
The main question in the case is this : Does this paper con-, stitute a contract binding upon the defendant ? It calls itself a contract but this does not of itself make it one. It is'not signed by the plaintiff nor on his behalf. This does not, of course, invalidate it, if the essential elements of a contract otherwise appear. The signing of it by the defendant does not import consideration, therefore the consideration, if any, should appear upon its face. A contract to be binding .must be mutual. Mutual promises constitute a good consideration. But where is there mutuality in this paper ? Does the plaintiff agree to do anything? If he does, we cannot discover it. He does not agree to deliver the goods ordered and there is no obligation of any kind on his part; either express or implied, to do so. On the contrary, he expressly disclaims liability, for he says: “ Should any part be omitted; the price of such shall be deducted.” Suppose the whole were omitted and no delivery of any kind had beén made to the defendant, could she, under this contract, have held the plaintiff liable for damages? It would seem that she could not. We are at a loss, therefore, to find the elements of a contract anywhere in the paper.
There was, however, some parol testimony of a general character as to the agent’s authority to make contracts. On the other hand, it appears from the paper itself that “ our agents are not authorized to vary from the printed terms hereto attached,” and in the part of the paper signed by the defendant it appears “ That this contract, a copy of which I have, covers all terms, conditions or agreements between your agent and myself in relation to this contract.” It would, therefore, appear from the order in evidence, upon which the plaintiff relies, that the agent, having no authority to vary from the printed terms, could not have bound the plaintiff in any way by any parol agreement as to delivery, etc. If, therefore, no mutual obligation can be gathered from the paper itself, it would seem as if the agent could not have bound his principal by anything which he said or did. But even if he could, it appears from his testimony that he did not do so. The mutuality, and hence the binding character, of the contract, if there was any, is, therefore, to be gathered from the paper itself and, as it nowhere appears, either directly or by implication, that the plain
It is admitted that the contract was never formally accepted by the plaintiff. Before the goods were delivered — in fact before anything was done toward their delivery — the defendant countermanded the order, for what would seem to have been a very good reason. Writing from Mechanicsburg, January 5, six days after the order was given, she says:
“ Gentlemen:—
“ On December 30, 1902, I gave Mr. E. Aldrich an order for trees, etc., and now wish to have same cancelled for the following reason:
“ Sometime ago I gave an order for the same articles to a gentleman in this town who is to deliver and plant same and which was entirely forgotten when the present order was given. I cannot allow both orders to stand and, therefore, must cancel the last given.
“ You will, therefore, cancel the entire order, as given Mr. Aldrich, as per copy left with me, one amounting to $123.50, the other $14.75.”
The receipt of this letter was expressly admitted in his testimony by the plaintiff’s witness who had charge of his correspondence and who dictated the reply thereto.
It will be said, however, that in the order she expressly agreed that it was not subject to countermand. But if it was not a contract, executed and binding at the time it was signed, that part of it bound her no more than any other part and, therefore, if it was countermanded before it was accepted by the plaintiff, the countermand was good. We think, therefore, the court was in error in refusing the first, second, fourth and fifth points for charge, all of which were refused on the ground that the orders in evidence, in connection with the other evidence, in the case, constituted contracts and, therefore, bound
A somewhat similar case has been considered by the Supreme Court of Michigan in Bronson v. Herbert, 95 Mich. 478 (55 N. W. Repr. 359). The order in that case is, in all essential particulars, similar to the one which we have been considering, and it was held, reversing the court below, that an order to ship trees, given to an agent, does not become a binding contract between the orderer and the principals until accepted.
In view of the conclusion which we have reached in regard to the legal construction of the written papers upon which the plaintiff bases his claim, it is unnecessary to consider the other question of compromise and the reasonable time within which it was necessary to accept it, raised by the appellant.
Judgment reversed.