Hale v. Matteson , 107 Ark. 224 ( 1913 )

Kirby, J.,

(after stating the facts). In order to constitute a binding contract of sale there must be a mutual assent of both parties to the essential terms of the agreement. Mere negotiations between them as to the subject matter or the terms of the sale will not be sufficient to make a binding contract and in determining whether such a contract has been made the first i consideration is the intention of the parties.

As said in Summit Lumber Company v. Shepherd, 102 Ark. 88, 143 S. W. (Ark.) 102, “If it appears from the contract or the plain intention of the parties that there remains something to be done relative to the property as between the vendor and the vendee—as, for example, to ascertain the amount, quantity or price thereof before the title thereto shall pass—then the sale would not be complete and binding. In such event, the title to the property would not pass, and therefore no corresponding obligation to pay therefor would be assumed. On the other hand, if from the contract it clearly appears that it was the intention of the parties that the title to the property was actually passed and the ownership thereof transferred by the seller to the purchaser, then the contract of sale will be mutually binding and effective, although there remains something to be done in order to determine the total quantity of the property sold, or the total price thereof (citing cases). Where the property sold is identified, and a method is agreed upon for determining its price, then the mere fact that the total amount of such price is not definitely fixed in the contract, will not render the sale incomplete or ineffective.”

In Emerson v. Stephens Gro. Co., 95 Ark. 426; 130 S. W. 543, the court said: “If the contract is actually entered into and made, whether by messages, correspondence, or word of mouth, the agreement becomes at once effective, although it was expected that the terms would afterwards be embodied in a written instrument and signed. The mere reference to a future contract in writing would not negative a present contract if- the terms thereof were actually assented to by both parties. The written draft of the contract would only be a convenient record of the agreement and the evidence thereof, but it would only constitute evidence of the agreement, and its absence would not affect the binding force of the contract that was closed. Therefore, if an unconditional offer is made, and that offer accepted, this will constitute an obligatory contract, although the parties also understand that a written contract embodying the terms be drawn and executed.” Friedman v. Schleuter, 105 Ark. 580, 151 S. W. (Ark.) 697; Cage v. Black, 97 Ark. 613.

If appellant’s testimony, that the terms of the sale had been agreed upon,- except the amount that was to be paid for the stock of goods, which was to be determined by the inventory to be taken as agreed and that the goods were actually delivered to appellees, be true, as the written agreement entered into at the time tends strongly to prove, and their other testimony as to the conduct of the parties relative to the delivery of the goods be taken as true, it would doubtless prove the sale, as alleged. A sale of the goods could have been made without any writing whatever, if accompanied by delivery and a partial payment therefor, and even though the parties contemplated that there, should be a further written contract, evidencing the sale upon completion of the inventory it would not have prevented the contract of sale already made being effective, if it was in fact made. Friedman v. Schleuter, supra.

In any event there was material testimony, tending to show there was a valid contract of sale made by appellant, as alleged, and the question should have been submitted to a jury under proper instructions and the court erred in directing a verdict. Williams v. St. Louis & S. F. Rd. Co., 103 Ark. 401, 147 S. W. (Ark.) 93, and cases cited; Hutchinson v. Gorman, 71 Ark. 305; St. Louis, I. M. & S. Ry. Co. v. Coleman, 97 Ark. 438.

The judgment is reversed and the cause remanded for a new trial.