Spinney v. Downing
41 P. 797
Cal.
1895
Check Treatment
Van Fleet, J.

Aсtion to enforce a materialman’s lien for the value of a quantity of brick furnished and used in the erection of a certain building. By way of cross-complaint and ground for affirmative relief, the defendant. Downing set up that he and the plaintiff enterеd into a certain contract whereby plaintiff agreed to furnish and deliver to said defendant all the brick required for the сonstruction of the building, the brick to be of a certain quality, and at a specified price per thousand; that plaintiff delivered a portion only of the brick so contracted for, and then neglected and refused to deliver any more, whereby defendant was compelled to procure brick for the completion of the said building elsewhere, and at a higher price per thousand, to defendants’ damage, etc., for which he prayed judgment.

Judgment went against plaintiff, and from thе judgment ‍‌​‌‌​​​‌​​‌‌‌​​​​‌​​​‌​​‌‌‌‌‌​‌‌‌‌‌‌​‌‌​​​​​​‌​​‍and an order denying him a new trial he appeals.

*668We think it clear that the alleged contract counted upon by defendant Downing in his cross-complaint never became a completed contract. It appears without conflict that it was the understanding and agreement between the plaintiff and Downing that the proposed contract should bе reduced to writing, and signed by both parties. This fact is made very clear by the evidence. The paper as drawn up was signеd by Downing, but for some reason which does not appear never was signed by the plaintiff, Spinney. It therefore never beсame a binding or subsisting obligation upon either. It is a general rule to which this case presents no exception that, when it is a part of the understanding between the parties that the terms of their compact are to be reduced to writing and signed by the parties, the assent to its terms must be evidenced in the manner agreed upon, or it does not become a binding or completed contract. This is essentially true when, as here, the proposed contract contains reciprocal stipulations and covenants upon the part of each as a consideration for the acts of the оther. (Ambler v. Whipple, 20 Wall. 546; Fuller v. Reed, 38 Cal. 99; Morrill v. Tehama etc. Co., 10 Nev. 125.) The case last cited is much in point, the facts not being essentially dissimilar to those of the case at bar. In that case the parties agreed upon the terms of a contract for the sale and delivery of a certain quantity of wood by plaintiff to defendant, but it was understood that the contract should be put in writing and. signed by both parties. It was accordingly reduced to writing, and was ‍‌​‌‌​​​‌​​‌‌‌​​​​‌​​​‌​​‌‌‌‌‌​‌‌‌‌‌‌​‌‌​​​​​​‌​​‍duly executed by defendant, but was. not signed by plaintiff, nor did the latter give a bond as was required for the faithful perfоrmance of the contract. He did, however, commence at once to deliver the wood, and continued to deliver it until stopped by the defendant. He brought an action for the breach of the contract, and in passing upon the case on appeal the supreme court of Nevada say:

“From the facts thus found we think, independent of the giving оf the bond, that the contract declared on *669was never completed. It is true the parties verbally agreed to thе terms of the contract as stated in the complaint, but it was to be reduced to writing and signed by both parties. And it was signed by McDonаld as the agent for defendant, but the plaintiff, for what reason does not appear, failed to sign it at the same time. Truе, four days afterward he went to Waters’ office for the purpose of signing it, and, failing to find it, proceeded to act undеr its terms. But the contract thus prepared was to be signed by both parties; it contained mutual obligations, each of which being the consideration of the other; .... and as the plaintiff failed thus to sign ‍‌​‌‌​​​‌​​‌‌‌​​​​‌​​​‌​​‌‌‌‌‌​‌‌‌‌‌‌​‌‌​​​​​​‌​​‍it, no reciprocal assent thereto can bе implied. There is no contract unless the parties thereto assent; and they must assent to the same thing, in the same sense. (1 Pаrsons on Contract, 475.) It is essential to the existence of every contract that there should be a reciprocаl assent to a definite proposition, and when the parties to a proposed contract have themselvеs fixed the manner in which their assent is to be manifested, an assent, thereto, in any other or different mode, will not be presumed. Nоtwithstanding the instrument.declared upon was fully executed on the part of defendant, the contract was still incompletе and neither party bound thereby.”

It is urged, however, by respondent that the appellant is estopped to deny the binding obligation of the contract because he proceeded with full knowledge of its terms to perform it by delivering a portiоn of the brick to Downing. We do not think the facts bring the case within the doctrine contended for. The case is not distinguishable in that rеgard from the case of Morrill v. Tehama etc. Co., supra. The same point was there made, that Morrill, by proceeding to execute the contract by delivering the wood, thereby ratified it and made it a valid and binding ‍‌​‌‌​​​‌​​‌‌‌​​​​‌​​​‌​​‌‌‌‌‌​‌‌‌‌‌‌​‌‌​​​​​​‌​​‍contract equally obligatory upon the parties as though he had signed it. But the court held that the doctrine contended for could not apply in such *670a case, and quote from Johnston v. Fessler, 7 Watts, 48; 32 Am. Dec. 738, where it is said:

“To render a proposed contract binding there "must be an accession to its terms by both parties. A mere voluntary compliance with its conditions by one who had not previously assented to it does not render the other liable on it.”

The court also cite Northam v. Gordon, 46 Cal. 582, and conclude: “The action is upon the contract. Morrill neglected to sign the agreement and also neglected to give the required bond; he consequently failed to accept respondent’s offer according to its terms, and there was, therefore, no contrаct such as was declared upon.” ‍‌​‌‌​​​‌​​‌‌‌​​​​‌​​​‌​​‌‌‌‌‌​‌‌‌‌‌‌​‌‌​​​​​​‌​​‍We think that case decisive of this. Furthermore, estoppels must be mutual, and it is obvious under the rule above laid down that Downing could not have been held bound under the proposed contract which Spinney had failed to sign, but could have repudiated it at any time;

In view of this conclusion the other questions do not require notice, since they will not arise upon a new trial.

Judgment and order reversed and a new trial ordered.

Harrison, J., and Garoutte, J., concurred.

Hearing in Bank denied.