64 Minn. 27 | Minn. | 1896
This is an action to recover damages for tbe failure of defendants to perform an executory contract made by tbe parties for tbe sale of saw logs by defendants to plaintiff. Tbe case was tried by tbe court without a jury. Tbe court found for plaintiff, and from tbe judgment entered in bis favor the defendants appeal.
It is found by tbe court that in November, 1891, tbe defendants were tbe owners of about 1,500,000 feet of saw logs, which were then on tbe waters of tbe lake and river St. Croix, and were then also tbe owners of tbe standing pine on certain lands in this state to the amount of about 7,500,000 feet; that tbe parties entered into a written agreement whereby defendants agreed to sell all of said 1,500,000 feet of saw logs then cut, and deliver them to plaintiff “rafted and ready for towing, as early in tbe season of 1892 as practicable,” and to sell and deliver to plaintiff said 7,500,000 feet of timber, to be cut tbe coming winter. “Said logs to be delivered in
The only error assigned is that the findings of fact do not support the judgment, for the reason that the contract is void for want of mutuality, as it is “not mutual and binding on both parties in regard to all logs that did not arrive in the boom during the season of 1892.” It is contended by appellants that, as the contract gave plaintiff an option to take or reject all logs to be cut in the winter of 1891-92 which could not be delivered in the season of 1892, therefore the contract is void for want of mutuality, and not enforceable as far as it now remains unperformed.
We cannot agree with counsel. If there is no consideration for the further performance of a contract by one party but the further performance by the other party, with whom it is wholly optional whether he will perform or not, the contract lacks mutuality, and is not enforceable by either party. Bailey v. Austrian, 19 Minn. 465 (535); Bolles v. Sachs, 37 Minn. 315, 33 N. W. 862. But where the party holding the option has already given a valuable consideration for it, he may enforce the contract. Smith v. St. Paul & D. R. Co., 60 Minn. 330, 62 N. W. 392. In other words, if he has bought his
We are of the opinion that the contract here in question, and all of it, was enforceable by plaintiff, and the judgment must therefore be affirmed. So ordered.