Holliday v. G. H. Pegram & Co. , 94 S.C. 292 ( 1913 )

April 8, 1913. The opinion of the Court was delivered by There was a formal appeal in this case, from the judgment entered upon a verdict, rendered by the jury in favor of the plaintiff for the amount claimed, which was set aside and the case remanded for a new trial (89 S.C. 73).

On the second trial the same letters which were introduced on the first, were again offered in evidence by the plaintiff. He also offered in evidence all the proposed written agreements, which, on his motion, were excluded upon the former trial.

The plaintiff also testified in detail as to the transactions that took place between him and the defendants during the year 1910, having in view the execution and delivery of a formal written agreement, which was never signed.

At the close of all the testimony, his Honor, the presiding Judge, directed the jury to render a verdict in favor of the defendants, and the present appeal is from such ruling.

The first question that will be considered is, whether the letters marked "A" (dated 10th March, 1910), "B" (dated 20th March, 1910), and "C" (dated 23d March, 1910), constituted an agreement between the plaintiff and the defendants. These letters were among those offered in evidence on the former trial, and were marked, respectively, "A," "B" and "C."

The Court in construing the letters then under consideration, ruled that they were not sufficient to show an agreement between the said parties.

The construction of the letters was thereafter binding upon the plaintiff and defendants on the principle of resadjudicata. Fraser v. Davie, 15 S.C. 496; Cartin v. Ry.,43 S.C. 221, 20 S.E. 979; Heustess v. Ins. Co., 93 S.C. 148.

The next question for determination is, whether there was any testimony introduced upon the second trial tending to show an agreement between the said parties.

The plaintiff, on cross-examination, testified as follows: "As a matter of fact, after he (Pegram) got that letter (from the plaintiff to Pegram, dated 20th March, 1910), he came over here and entered into possession, and rode down the country, and took up the question of entering into an agreement with you? Yes, sir. When he came down there, you and he couldn't agree upon the terms of the written agreement? I had drawn up this first agreement. Whichever one you offered him, he wouldn't agree to it? No, sir. You offered him a paper and he refused to sign it? Yes, sir. He wanted other things put in? Yes, sir. They were not put in at that time? No, sir. You didn't go into a written agreement at that time? No, sir. You never did go into a written agreement with him? No, sir. He met you down there at your house, according to your letter you wrote him? Yes, sir. Then you agreed to come here to Florence, or to meet in Florence? I told him I was going to Dillon, and I would stop and prepare another, as per our agreement, which is the second copy, and I would stop by and see him then. Then you offered him this contract, and this he refused to sign? Yes, sir. Then he had a contract prepared which he offered to you, as to what he thought? He said he wanted me to put in that second contract — (interrupting). You offered him a contract which he refused to sign, and then he had a contract prepared which you refused to sign? Yes, sir. You never could come into any written contract between you, you contending for things you thought were right, and your minds couldn't agree upon the terms of the contract? No, sir; we would agree as to those I wrote up, but each time he would infuse foreign matter; not on my part, but on his part. But your minds wouldn't meet, because each time he would say something ought to be put in there, which was not put in there, and that was the reason you couldn't go into the contract? Not reduced to writing. All the time he contended for one thing and you for something else; that is right? He was infusing foreign matter. He was always contending for something you wouldn't consent to? Yes, sir. There was some differences between you; he was claiming something you wouldn't consent to? Yes, sir. You never could reach an agreement in writing, although you tried and you were todo it? Yes, sir." (Italics ours.)

In all the negotiations between the parties, it clearly appears they contemplated that the agreement should be reduced to writing before it should become effective, in order that all misunderstandings that might arise would thereby be obviated.

The following authorities show that as the minds of the parties never met, there never was a valid agreement between them:

"It is an undeniable principle of the law of contracts that an offer of a bargain by one person to another, imposes no obligation upon the former until it is accepted by the latter, according to the terms in which the offer was made. Any qualification of, or departure from, those terms, invalidates the offer, unless the same be agreed to by the person who made it. Until the terms of an agreement have received the assent of both parties, the negotiation is open and imposes no obligation upon either." Eliason v. Henshaw, 4 Wheat. 225.

"When there is a misunderstanding as to the terms of a contract, neither party is liable in law or equity. * * * When a contract is a unit and left uncertain in one particular, the whole will be regarded as only inchoate, because the parties have not been ad litem, and therefore neither is bound. * * * A proposal to accept, or acceptance upon terms varying from those offered, is a rejection of the offer."First National Bank v. Hall, 101 U.S. 43.

While it thus appears that the plaintiff was not entitled to recover on the cause of action alleged in the complaint, nevertheless justice and equity demand that he should have compensation for the use of the tobacco house during the time the defendants were in possession thereof, after deducting any amount due the defendants, by reason of the alleged failure of the plaintiff to make the proper repairs. Therefore, leave is hereby given the plaintiff to amend his complaint by setting up a cause of action based upon a quantum meruit.

Appeal dismissed.

MR. JUSTICE WATTS concurs.

MR. JUSTICE FRASER concurs in the result.