Brown v. Finney , 1867 Pa. LEXIS 32 ( 1867 )

The opinion of the court was delivered, by

Thompson, J.

The 1st and 2d points of the defendant below were entitled to clear affirmative answers. They are,

“ 1. If the jury believe that all the terms of the contract were not finally arranged the first day, but that the entire contract was to be arranged and reduced to writing the next day; there was then no binding contract between the parties, and no contract having been proved to have been made the next day, or any subsequent day, the plaintiff must fail in this action.

“ 2. That either party in arranging the terms of a contract has the right to require that it be reduced to writing and signed before becoming obligatory, and in such case the contract does not become binding on either party unless reduced to writing and signed by him, or unless he refused to sign it when tendered to him by the other party.”

It is true the learned judge did affirm these points, hut with qualifications amounting to a substantial negation of them. The testimony shows that the plaintiff and defendant accidentally met at a restaurant or refreshment saloon, not on business, but accidentally, to procure refreshment. Several others were present, and the defendant being an extensive coal dealer, the conversation turned on the price of coal, and eventually the price at which it could be delivered per bushel at Cincinnati. The defendant alleged he could deliver it there at the price it was selling at Pittsburgh, at sixteen cents per bushel. The plaintiff, — the witness McKee thought, — bantered him about delivering coal there to him at that price, but the defendant said he could and would. Finney said he would take 100,000 bushels, and called for pen, ink and paper to write a contract. Brown said the barges to be used in transporting the coal were to be returned in good order, reasonable wear and tear excepted, and he must have $10 a day for each after a proper time had elapsed for the plaintiff to unload and return them. He further said the coal must be cash. The plaintiff said, “ Certainly,” and commenced writing a check, one of the plaintiff’s party handing him a stamp. Brown then remarked, “ Never mind that, I’ll have the .papers drawn up to-morrow.” The matter proceeded no further then, but on the next day or next hut one, the plaintiff with one or two of those who were of his party at the saloon, called on the defendant to consummate the writings, but disputes arising, the contract was never put in writing, and the plaintiff not long thereafter sued on the contract as complete at the first interview, and recovered $2000 damages.

After affirming, in general terms, the 1st point, the learned judge qualified the assent by saying, “ but if it is intended by the proposition, that when a contract or agreement is made on terms proposed at the time, but the adjustment of these terms in the contract and reducing them to writing is postponed till the next day and then neglected or refused to be done by either party, that in such a case the contract is not binding, I would answer in the negative.”

This was calculated to mislead the jury. It assumed the contract to be complete all but putting it in writing ; the terms all agreed upon, needing only to be adjusted in the writing ; in such case the learned judge was of opinion the contract would be good notwithstanding no writing was ever entered into or intended. Doubtless it would, but that was not a settled point by any means in the case in hand. Whether all the terms were agreed upon necessary to such a contract was the question, and to describe a case not before the court and of a different character, was either to induce the jury to suppose the case on trial was like it and the law of it was to govern, or to render the instruction incomprehensible to them. But the next sentence more clearly explicates the objectionable character of these qualifications. “ To allow,” says the judge, “ the non-reduction to writing or non-arrangement of the terms of a contract, after it was entered into, to work its rescission, they should be made part of its terms at the time it was made, conditioned not to be binding unless these things were done. The arrangement of the terms which have been once agreed to is not essential unless made so. A contract entered into with the proviso when .reduced to Writing, and the arrangement of the terms thereafter agreed on, would not be perfect or binding until the arrangement was made and written, but a contract and its terms agreed on and their adjustment postponed to another time, and one of the parties afterwards refusing to assent to any adjustment, he would not be relieved because such was not made a condition of his being bound when the contract was made.” This is all predicated of a contract complete in all its parts except adjusting its terms, a thing I do not quite comprehend. In such a case a proviso that it should not be binding unless reduced to writing, might, as the learned judge remarked, be necessary in order to prevent it being binding. Obviously, this would not be necessary where the contract was not complete, and this was the plaintiff’s theory as contained in the point. But the jury would scarcely fail to understand the court in instructing them that the contract was complete, and for want of a proviso or reservation that it should not be binding it would be, and as there was no such reservation or promise proved, it was therefore to be held by them to be a contract complete and entire.

In substance the same thing is repeated in the answer to the 2d point — “ Either party,” said the learned judge, “ in making a contract, can make it conditional or dependent on being reduced to writing before becoming binding upon him, so that he may see its terms in a definite shape; but this must be a condition or one of the conditions of the contract itself or reservation on his part on entering into it.” Here again is a complete contract assumed, and the necessity for a reservation or condition to prevent it being binding as a contract. This assumes the question at issue by requiring reservations and conditions to prevent the contract going into effect, which -without them would be complete. But this would not be necessary where the terms of the contract were not all agreed upon.. Such reservations or conditions would be out of place then. Whether a contract had been completed in the case in hand was the essential question of the case, and when instructions were given based upon an assumed complete contract the jury were, doubtless, misled. It needs no reservations or provisoes in a case where all the essential terms are not agreed upon but postponed to another time, for the assent of the contracting minds is wanting. To ascertain how this was, was the main contest, and the defendants' put their proposition to the court predicated on the belief that the contract was not completed at the saloon, but postponed until writings were prepared; but to the instruction assenting to the proposition, are added principles foreign to it, that is to say, the necessity of a reservation or proviso to prevent it being binding. I think there should have been a clear affirmative answer to these points upon the theory of the defendants. The transaction looks like what McKee thought it was, a bantering proposition by the plaintiff to the defendant, and wanting the intention to contract. There was certainly testimony on this point — the time, place and circumstances tended to show it, and it should have been clearly put to the jury to say Avhether, under the testimony, there was a contract or not. It is not every loose conversation that is to be turned into a contract, although the parties may seem to agree. A man is not to be snapped up for an unintended proposition made when he has no reason to suppose anybody wants to accept what he proposes. When people meet to do business they1 are presumed to mean what they propose, and expect to be taken up ; but a proposition made and accepted where no expectation of contracting exists, should be carefully weighed with all the circumstances when the question of assent at the time comes to be questioned, as here. We do not intend to intimate any opinion on the merits of this controversy, but for the reasons given we think it ought to go to another jury. We see nothing else in the case which calls for notice or correction.

Judgment reversed, and a venire de novo awarded.