Bagnell Timber Co. v. Spann ( 1912 )

Kirby, J.,

(after stating the facts). It is contended by appellant that it made no contract with appellee for the delivery of the ties to it, and with this contention we agree. Certainly, the letter expressing a willingness to take all the ties of certain kinds, grades and specifications that appellee might make and deliver at the designated place along the right-of-way of the railroad line can not be held a contract, and all the correspondence between the parties does not, in our opinion, show any contract of sale of the ties. Nowhere did appellee agree to sell any ties whatever to appellant nor to make or deliver to appellant any number of ties, within a specified time, or at all. In other words, from the entire correspondence it appears only that the company offered to take and pay the price designated, for the ties, coming within the specifications mentioned in the letter, along the right-of-way in accordance with the terms, and would even advance ten cents per tie for the cost of hauling to the right-of-way, but it made no advance whatever, neither was it asked to do so, nor did appellee accept such offer or agree to furnish it any ties whatever, nor notify the company that he intended to or would do so, neither was he bound under the circumstances to sell or deliver to the company any ties at all. Not being bound himself to the sale or delivery of the ties, there was no contract between the parties, since it was not binding upon both of them. Eustice v. Meytrott, 100 Ark. 510; Turner v. Baker, 30 Ark. 194.

Appellee could not recover damages for the breach of an alleged contract which did not, in fact, exist. The judgment is reversed, and the cause dismissed.