60 Kan. 424 | Kan. | 1899
The opinion of the court was delivered by
It does.not appear from the petition that there was any contract or agreement upon tl^e part of the plaintiffs below with the railway company by which they bound themselves to ship the corn over the line of the Missouri, Kansas & Texas railway. While it is alleged that the agent, Donohue, promised and contracted on behalf of the railway company to transport this corn for the plaintiffs within a given time to Laredo, Tex., and that plaintiffs made contracts with the persons in Mexico upon the strength of the promise of Donohue, yet nowhere is it alleged that the plaintiffs agreed to furnish this corn to the Missouri, Kansas & Texas Railway Company for shipment. There are allegations in the petition to the effect that the plaintiffs below had various offers from persons in Mexico to purchase a certain quantity or kind of corn at a certain price per hundred pounds, delivered at Laredo, which place is on the border between the state of Texas and the republic of Mexico ; that these propositions as they were received by the plaintiffs below were in each instance shown to Donohue, who, it is alleged, was the commercial agent of the company, with authority to contract for it and especially to make the contract with the plaintiffs for the transportation of the corn; that, upon receiving from Donohue assurances that the railway company would receive and ship the corn if the plaintiffs made
It is not contended by counsel for defendant in error that there is any express allegation in the petition to the effect that W. H. Harris & Co. bound themselves to ship the corn over the railway of defendant in error, but it is claimed that this is a fair inference to be drawn from the language used. While the allegations of the petition, when attacked by an objection to the introduction of evidence under it, will be construed liberally and will be held good unless there is a total omission to allege some material fact which is essential to plaintiffs’ cause of action, yet it seems to us that an allegation of the important element of mutuality, which is the basis of all valid contracts, is wholly absent from the petition. It is probable that the pleader considered that he was pleading an undertaking on the part of the plaintiffs below, by the terms of the contract with Donohue, to ship the corn over the defendant’s railway, but a careful reading of the petition convinces us that he wholly failed so to do. In the late case of Woolsey v. Ryan, 59 Kan. 601, 54 Pac. 664, this court, speaking through Chief Justice Doster, said :
“In all probability, the instrument wTas supposed to be binding upon both sides when it was signed, but we can give effect to the intention of the parties only through' the words they employ. If they do not express themselves in intelligible language, the law cannot afford them relief. For illustrations of the rule which requires mutuality of engagement between parties to contracts, see Davie v. Mining Co., 93 Mich. 491, 53 N. W. 625; Vogel v. Pekoc, 157 Ill. 339, 42 N.*432 E. 386; Campbell v. Lambert, 36 La. Ann. 35; Turnpike v. Coy, 13 Ohio St. 84; Stensgaard v. Smith, 43 Minn. 31, 44 N. W. 669.”
The defendant in error contends that the petition was sufficient in the respect mentioned, it having alleged offers from persons in Mexico to buy corn from W. H. Harris & Co., which offers were laid before Donohue, with the amount, price, terms and all made known to him, and thereon he was requested to name a through'rate from Kansas City to Laredo within the time fixed; that he offered, if plaintiffs would make the sale, to transport the corn for 25 cents per 100 pounds; that plaintiffs notified him that they would close the sale and ship the corn within the time ; “that defendant thereupon, through its agent, orally contracted and agreed with plaintiffs to transport said quantity of grain promptly and as rapidly as tendered within the time so specified to said Laredo, Tex., at the rate of 25 cents per 100 pounds” ; that plaintiffs thereupon closed a contract of sale.
The agreement places an obligation upon one of the parties to the contract only — the railway company. If W. H. Harris & Co. had refused to ship any corn over the road of the defendant after making the various oral contracts with Donahoe, and the railway company had sued them for á breach, could it be said that proof only of the facts set out in the petition would render W. H. Harris & Co. liable to the railway in damages for a failure to ship over the line of the plaintiff in error? From all that can be gathered from the pleading, plaintiffs below were at liberty to ship this corn over any other route from Kansas City to Laredo, and it appears from the evidence that there were two others. Nor can the doctrine of “express aider ” cure the infirmities of the petition. The
The principle that mutualityis an essential element to the validity of contracts is well settled.
“It is a general principle of law of contracts, but not without exception, that an agreement entered into between parties competent to contract', in, order to be binding, must be mutual; and this is especially so when the consideration consists- of mutual promises. In such cases, if it appears that the one party never was bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality.” (Wilkinson v. Heavenrich, 58 Mich. 574, 26 N. W. 139.)
In Tucker v. Wood, 12 Johns. 190, it is said: “In contracts, where the promise of the one party is the consideration for the promise of the other, promises must be concurrent and obligatory upon both at the sanie time.” In Chitty on Contracts, 297, this language is used : “ The agreement, as before observed,
The defendant in error calls our attention to the evidence in the cause, which he claims shows a plain contract of agreement on the part of W. H. Harris & Co. to ship over the line of the Missouri, Kansas & Texas Railway Company. This evidence is contained in the affidavit made by Donohue before the action was brought, and was used in his cross-examination for the purpose of contradiction and impeachment. A large portion of this affidavit was of doubtful admissibility, and that part of it relating to the agreement of plaintiffs below to ship the grain over the line of the defendant railway within the time specified was not ill contradiction of any statements made by the witness in direct examination. Whether this testimony was admissible or not becomes immaterial, however, in our view of the failure of the petition to allege such mutuality of contract as justified a recovery under it.
A number of exhibits written in Spanish were offered in evidence, containing orders for corn from persons and firms in Mexico named in the petition, addressed to the plaintiffs below and material to their case. These documents were translated by one Enrique Guerra, who made affidavit to each that he was a competent translator, could read and write both Spanish and English, and that he had translated the documents accurately and faithfully into the English language. Mr. Bagley, a witness for plaintiffs below, testified that he could converse in Spanish, that he had known
It is unnecessary to consider other grounds of error assigned. We will say, however, in view of another trial of this cause, that the authority óf the agent Donohue to make the contracts was in our opinion sufficiently established. The instructions given hint by Mr. J. Waldo, the general traffic manager of they railway company, to the effect that he might do whatever was necessary to get the south-bound business
The judgment of the court below will be reversed, arid a new trial ordered.
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