157 P. 1044 | Okla. | 1916
The defendant in error commenced this action in the district court of Haskell county against the plaintiffs in error, to foreclose a mortgage upon real estate. The parties will be hereinafter styled as they were in the court below. The defendants answered, admitting the execution of the note and mortgage sued on by plaintiff, and the defendant R.E. Rogers pleaded a set-off because of the breach of an oral contract entered into with plaintiff for the sale of the sewing machines of plaintiff in Haskell county. At the close of defendants' testimony plaintiff demurred thereto, which demurrer was sustained by the court. Thereupon the jury were instructed by the court to return a verdict for the plaintiff for the amount sued for. Judgment being entered upon such verdict and motion for new trial having been overruled, defendants prosecute this proceeding in error to reverse the judgment rendered.
It is claimed that a contract similar to the contract relied upon by the defendants was first entered into by the Rogers Mercantile Company, of which company defendant R.E. Rogers was president, and the plaintiff, in the year 1906. In the year 1910 the Rogers Mercantile Company ceased to do business, and defendant R.E. Rogers claims that he then entered into a contract with plaintiff upon practically the same terms and conditions. The defendant testified as to the original contract, in substance, as follows: That as manager of the Rogers Mercantile Company he made a contract with J.H. Sneed, who was then representing the White Sewing Machine Company; that Mr. Sneed came into the store and showed the defendant the advantages of going into the machine business and the profits of such business, and suggested that defendant go ahead and handle the White sewing machines in what is now Haskell county; buy a wagon and team, and put a man on the road to sell the White sewing machine, and in consideration that he would go ahead and do all of this the White Sewing Machine Company would give him the territory that is now Haskell county; that defendant contracted at that time for 50 machines, and put a man on the road at a salary of $75 per month; that the price of the machines was agreed upon, and the terms of credit; that the machines were to be shipped by plaintiff as defendant ordered them; that defendant put a man with a wagon and team in the field selling machines, and sold machines until the Rogers Mercantile Company went out of business. Defendant Rogers testified that at that time it was agreed between him and Mr. Loring, agent of the plaintiff, that he was to assume the sewing machine business of the Rogers Mercantile Company in his own name; that he was to have the territory of Haskell county for the sale of White sewing machines as long as he sold the machines; that defendant, after the Rogers Mercantile Company went out of business in 1910, sold machines in Haskell county, and ordered machines from the plaintiff at various times, which were delivered, until 1912, when the plaintiff refused to fill orders for machines sent in by the defendant. It is for this breach of the contract claimed by defendant that he seeks to interpose the set-off pleaded in this case.
Counsel for plaintiff demurred to the evidence of defendant on the ground that the contract testified to by defendant was within the statute of frauds, because it was a contract not to be performed within 1 year, and therefore void because not in writing, and upon the ground that the contract was void for want of mutuality. The trial court took *41 the view that the contract was void, and therefore directed the verdict for the plaintiff. In the view we take of the facts testified to by defendant, it is not necessary to consider the argument of counsel for the respective parties as to the contract falling within the statute of frauds, except to remark that the argument of counsel for defendants that it was not within the statute because it might have been completely performed within one year is an admission of its indefiniteness and lack of mutuality. We shall therefore only consider the question as to whether or not the contract is void for want of mutuality and uncertainty.
It is contended by counsel for defendant that the contract is a valid, mutual, and binding obligation upon the parties thereto. Counsel relies chiefly upon the case of Spencer v. Taylor,
"The contract, however, does not by its terms fix any period of duration between the parties, and its duration is indefinite, so that we are unable to determine just how long the parties contemplated that it should continue. This being true, it might be terminated by either party at any time. * * * In the case at bar, however, the identity of the subject-matter was left for future determination, and was only capable of being made certain by the concurrent act of the parties, and there is no present grant of any specific right therein capable of ascertainment, and neither party for a failure to carry out the terms of the agreement could require specific performance of the other because of this uncertainty; neither can an action for damages for breach thereof be maintained, as will appear hereinafter."
In the case of Baltimore Ohio R. R. Co. v. Potomac Coal Co.,
"It is essential to the validity of every contract of this character that there should be a mutuality of obligation. A contract is not binding on one of the parties unless it is binding on the other. Here, there is no obligation of any kind resting upon the appellee, for the breach of which an action would lie at the instance of the appellant. It was not obliged either to furnish the cars, or to keep them on the road after they were furnished. It might put them on the road one day, and take them off the next, just as its own interests might require. Cases are to be found, it is true, of executed contracts, where one has received the benefit of the consideration for which he bargained, and in which it is no answer to an action to say that the plaintiff was not bound by the terms of the original contract to do the act, and that there was therefore no mutuality of obligation. * * * This, however, is not the case of an executed contract, the consideration of which has been received by the railroad company, for although the coal company did furnish cars for the transportation of its own coal, yet it has the right at any time to withdraw them from the road, and for so doing there is no breach of obligation on its part." *42
In that case a railroad company wrote a letter to a coal company, agreeing that if the latter would place its own coal cars on the road of the former, for transportation of coal from P. to B., the former would allow one-fourth of 1 per cent. per ton per mile for such cars so used, would indemnify the coal company for damages to such cars caused by the fault of the railroad company, and would keep the cars in repair, charging the actual cost thereof, but would not agree for prompt transit, nor to give a number of cars equal to that so furnished. No term was specified for the continuance of the arrangement. The coal company thereupon provided a large number of cars at a large expense, which were so used for 10 years. Then, at the request of the coal company, the privilege was indefinitely and in like manner extended, on the same conditions, in consequence of which the coal company incurred great expense. Two years later the railroad company notified the coal company that the allowance would be reduced to one-eighth of 1 per cent. In an action by the railroad company to recover the difference in tolls and freight for a subsequent period, held, that the arrangement evidenced by the letters did not constitute a contract, but was a mere revocable license. Woolsey v. Ryan,
The judgment of the court below should be affirmed.
By the Court: It is so ordered.