McCaull-Webster Elevator Co. v. Root , 61 Mont. 82 ( 1921 )

MR. CHIEF COMMISSIONER POORMAN

prepared the opinion for the court.

This is an appeal by the defendant from a judgment in favor of the plaintiff, made and entered in an action tried to the court sitting without a jury, and from an order overruling the defendant’s motion for a new trial. The complaint alleges that the plaintiff is a corporation and that on or about the 23d of August, 1916, “the plaintiff and defendant entered into an agreement for a consideration as therein expressed, whereby defendant agreed to sell and plaintiff agreed to purchase for the sum of $1.30 per bushel 1,000 bushels of wheat,” and that defendant promised and agreed to deliver the same to the plaintiff at its elevator in Geraldine, Montana, on or before the first day of November, 1916, but that defendant neglected and refused to comply with the terms of the contract and the plaintiff was damaged thereby. To this complaint the defendant filed his answer, admitting the execution of an agreement on August 23, 1916, for the sale of a quantity of wheat to the plaintiff at $1.30 per bushel, but denying that he has sufficient knowledge or information to form a belief as to the terms of said agreement, and for a further answer alleging that he entered into an agreement on the 23d of August, 1916, to deliver certain wheat to the plaintiff and that it was understood and agreed that the plaintiff should pay to the defendant a part of the purchase price; “that defendant would not have signed said contract only upon the inducement of plaintiff that part payment of said grain would be paid upon defendant’s signing the same”; that defendant was misled by plaintiff and induced to execute said agreement to deliver said grain; that not any consideration or anything of value was paid to the defendant by the plaintiff for said agreement and that defendant did not deliver any of said grain to the plaintiff.”

The agreement referred to in the complaint is as follows:

“Contract — The McCaull-Webster Elevator Co.

“No. 36. Geraldine, Mont., Station, Aug. 23, 1916.

“I, A. 0. Root, do hereby sell and agree to deliver to the McCaull-Webster Elevator Company, or their agent, at their elevator, warehouse, or cribs, as they may designate, at Geraldine, station, in Chouteau county, state of Montana, between the 23d day of Aug., '1916, and the 1st day of Nov., 1916, buyer’s option, 1,000 bushels of good, sound, dry, and merchantable wheat to grade 2 H. M., for which I am to receive one and 30/100 dollars per bushel; said wheat being now in my possession and free from incumbrance. I do furthermore agree that, in case of default in the delivery of the grain as stipulated above, or by such date as buyer may extend the time of expiration of this contract, to pay as liquidation damages the difference between the price as above stipulated and the market value of same grain and grade on date this contract is closed by the buyer. I do furthermore acknowledge the receipt of none dollars as part payment on this sale, and confirm the contract as above made.

“Witness my hand this 23d day of August, 1916.

“Witness: Robt. Fulton. ■ A. 0. Root.”

At the trial of the case the plaintiff introduced the agreement in evidence, and offered further evidence as to damages suffered by the plaintiff, and rested. The defendant testified to the effect that at the time of signing the agreement “He [Fulton] wanted me to sell some wheat to be delivered in the future, and I finally told him I would do so. He produced the blank form of contract, filled it out, and I signed it. I said to Mr. Fulton, ‘How much do I get down?’ I needed some money at the time; he shoved the contract in his drawer and said, ‘None.’ I answered that ‘I would not have signed the contract if I did not want to raise some money,’ and Fulton replied, ‘We never do.’ I answered, ‘I don’t know much about the laws of Montana, but in some states that contract is not worth the paper it is written on; I would not have to deliver, or you receive or pay for, the wheat.’ Mr. Fulton answered, ‘We don’t pay anything on the contracts.’ He refused to pay me anything on the contracts, and I refused any delivery. * * * I told him that I would not deliver grain on that contract unless he would pay me something on it.” He further testified that the plaintiff did not make any demand upon him for the delivery of the wheat until some time in December, 1916. The defendant rested at the close of Mr. Root’s testimony and the plaintiff did not offer any rebuttal evidence.

The agreement on its face shows that no consideration was [1] paid therefor. The testimony of the defendant is also to the effect that there was not any consideration paid for the agreement and that he signed it with the understanding that a part payment was to be made. By the terms of the agreement the plaintiff does not bind itself to accept the wheat, nor does it make any promise whatsoever. The agreement was not “closed by tbe buyer.” Tbe agreement is wholly unilateral, is wholly without consideration, and for that reason cannot be sustained as a contract of sale; neither can it be sustained as a contract of sale and purchase, for it lacks both consideration and mutuality; neither can it be sustained as an option contract, for there was neither consideration nor acceptance thereof within the time named in it, and the same, according to the undisputed evidence of the defendant, was-withdrawn immediately after its signing and the refusal of the plaintiff to pay any consideration therefor. (Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep. 17, 24 Pac. 695; Snider v. Yarbrough, 43 Mont. 203, 115 Pac. 411; Donlan v. Arnold, 48 Mont. 416, 138 Pac. 775.)

For the reasons herein stated, we recommend that the judgment and order appealed from be reversed and the cause remanded to the district court, with directions to dismiss the action.

Per Curiam : For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed, and the cause remanded to the district court, with directions to dismiss the action.

Reversed.