Spinney v. Downing

Van Fleet, J. Action to enforce a materialman’s lien for the value of a quantity of brick furnished and used in the erection of a certain building. By way of cross-complaint and ground for affirmative relief, the defendant. Downing set up that he and the plaintiff entered into a certain contract whereby plaintiff agreed to furnish and deliver to said defendant all the brick required for the construction of the building, the brick to be of a certain quality, and at a specified price per thousand; that plaintiff delivered a portion only of the brick so contracted for, and then neglected and refused to deliver any more, whereby defendant was compelled to procure brick for the completion of the said building elsewhere, and at a higher price per thousand, to defendants’ damage, etc., for which he prayed judgment.

Judgment went against plaintiff, and from the judgment and an order denying him a new trial he appeals.

[668]We think it clear that the alleged contract counted upon by defendant Downing in his cross-complaint never became a completed contract. It appears without conflict that it was the understanding and agreement between the plaintiff and Downing that the proposed contract should be reduced to writing, and signed by both parties. This fact is made very clear by the evidence. The paper as drawn up was signed by Downing, but for some reason which does not appear never was signed by the plaintiff, Spinney. It therefore never became a binding or subsisting obligation upon either. It is a general rule to which this case presents no exception that, when it is a part of the understanding between the parties that the terms of their compact are to be reduced to writing and signed by the parties, the assent to its terms must be evidenced in the manner agreed upon, or it does not become a binding or completed contract. This is essentially true when, as here, the proposed contract contains reciprocal stipulations and covenants upon the part of each as a consideration for the acts of the other. (Ambler v. Whipple, 20 Wall. 546; Fuller v. Reed, 38 Cal. 99; Morrill v. Tehama etc. Co., 10 Nev. 125.) The case last cited is much in point, the facts not being essentially dissimilar to those of the case at bar. In that case the parties agreed upon the terms of a contract for the sale and delivery of a certain quantity of wood by plaintiff to defendant, but it was understood that the contract should be put in writing and. signed by both parties. It was accordingly reduced to writing, and was duly executed by defendant, but was. not signed by plaintiff, nor did the latter give a bond as was required for the faithful performance of the contract. He did, however, commence at once to deliver the wood, and continued to deliver it until stopped by the defendant. He brought an action for the breach of the contract, and in passing upon the case on appeal the supreme court of Nevada say: