CASES OVERRULED, DOUBTED AND DENIED. xxxvii Scott v. Greer (10 Penn. St. 103), doubted; Annville Nat. Bk. v. Kettering (106 Penn. St. 531), 538. Seay v. Greenwood (21 Ala. 494), denied; Watson v. Watson (53 Mich. 168), 112. Smith v. Watson (2 B. & C. 404), denied; Parchen v. Anderson (5 Mont. 438), 68. State v. Holt Co. (39 Mo. 524), denied; Ex parte Levy (43 Ark. 42), 556. Stillwell v. N. Y. Cent. R. Co. (34 N. Y. 29), denied; Ormsbee v. Boston and Prov. R. Corp. (14 R. I. 102), 356. Stockton v. Stockton (40 Ind. 225), denied; Gordon v. Moore (44 Ark. 349), 612. Stults v. Silva (119 Mass. 137), denied; Riker v. Sprague Manuf. Co. (14 R. I. 402), 417. Sullivan v. Hadley (16 Ark. 129), overruled; Whittington v. Flint (43 Ark. 504), 583. Towns v. Riddle (2 Ala. 694), denied; Gordon v. Moore (44 Ark. 349), 612. Waland v. Elkins (1 Stark. 272), denied; Parchen v. Anderson (5 Mont. 438), 68. Ware v. Cartledge (24 Ala. 622), denied; Watson v. Watson (53 Mich. 168), 112. Waugh v. Carver (2 H. Bl. 235), denied; Parchen v. Anderson (5 Mont. 438), 67, 68; Culley v. Edwards (44 Ark. 423), 616. Way v. Smith (111 Mass. 523), denied; Riker v. Sprague Manuf. Co. (14 R. I. 402), 417. Weyland v. Elkins (Holt N. P. 227), denied; Parchen v. Anderson (5 Mont. 438), 68. Wightman v. Townroe (1 M. & S. 412), denied; Parchen v. Anderson (5 Mont. 438), 68. Wilkinson v. Frasier (4 Esp. 182), denied; Parchen v. Anderson (5 Mont. 438), 68. Wilson v. Whitehead (10 M. & W. 503), denied; Parchen v. Anderson (5 Mont. 438), 68. Wish v. Small (1 Camp. 331), denied; Parchen v. Anderson (5 Mont. 438), 68 A contract by which one engages to deliver to the other such quantities of coal as he may require during the year, up to a specified limit, at a specified price, but containing no engagement on the part of the buyer to take or pay for any, is not enforceable against the promisor. A CTION on contract. The opinion states the case. The defendant had judgment below. Singleton, Browne & Choate, for appellant. Charles S. Rice and T. Gilmore & Sons, for appellee. FENNER, J. Plaintiff and defendants entered into the following agreement: "ARTICLES OF AGREEMENT "Entered into this first day of January, 1879 (eighteen hundred and seventy-nine), between A. Lambert & Co., of the one part, and W. S. Campbell of the other part, witnesseth: That the said A. Lambert & Co., for and on behalf of themselves, and the said W. S.. VOL. LI - 1 Campbell v. Lambert. Campbell, of New Orleans, for himself, have mutually agreed with each other as follows: That the said party of the first part shall furnish and deliver to the said W. S. Campbell, of New Orleans, such quantities of Pittsburg coal as may be required by the party of the second part during one year, from the 1st of January, 1879, to the 1st of January, 1880, to the extent of sixty thousand barrels, with the privilege of twenty thousand barrels or more, to be delivered with dispatch, in such quantities and at such places within the city limits, as may be designated by the party of the second part. That the party of the first part shall receive for each and every barrel of Pittsburg coal thirty-eight cents per barrel, payable at the end of each month. "This done and signed in duplicate and good faith this 31st day of December, 1878. (Signed) A. LAMBERT & Co. A striking similarity will be observed between this document and the one sued on in the case of W. S. Campbell v. J. P. H. Short, No. 8069 of the docket, recently decided and not yet reported. It is further observable that the party who then resisted here demands enforcement of the letter of his bond. In the present case, from January to June, the price of coal was such that defendants could have supplied coal under the agreement without loss. During this period plaintiff ordered of them less than one thousand five hundred barrels. From June first coal began to advance, and on 1st of September, 1879, a disastrous storm occasioned the sinking of a large portion of the coal fleet lying at this port. This caused a large advance of prices and a corresponding increase in the size of plaintiff's orders on defendants. The latter however struggled to comply with their agreement, actually delivering during the year a total of thirty-three thousand three hundred and forty-five barrels. At last, in November, plaintiff having ordered the delivery of five hundred barrels per day, for twelve days, at his own coal yard, defendants refused to comply. Plaintiff then claimed delivery of the balance of the entire eighty thousand barrels mentioned in the agreement, and, on refusal by defendants, brought the present suit for $28,926.10 (besides other items), being for sixty-two cents per barrel on forty-five thousand six hundred and fifty-five barrels undelivered, that being the differ Campbell v. Lambert. ence between the contract price and the price at the date of demand. Plaintiff claims that under the unambiguous letter of his contract he was entitled to demand, and defendants were bound to deliver, the entire amount of coal mentioned in the contract whenever he chose to make the demand. Defendants, on the contrary, say that the plaintiff was a retail dealer in coal, supplying consumers, and that the true meaning and intent of the contract were that plaintiff's orders should only be for the purpose of supplying his consuming customers and to the extent necessary for that purpose. It is not necessary to resort to construction, though there is not wanting evidence in the record to sustain the view of the defendants. But on plaintiff's own theory it is manifest that the agreement is a nudum pactum. We scan its provisions in vain to find the imposition on Campbell of any obligation to take or pay for any amount of coal whatever. He undertakes nothing, except to pay at the end of each month for such coal as he may have chosen to order. One promise may be a good consideration for another promise, but not "unless there is an absolute mutuality of engagement, so that each party has the right at once to hold the other to a positive agreement." 1 Pars. Cont. 448. Thus it has been held, that a written agreement to give A. the refusal of the lease of a farm, at a stipulated rent, with no agreement on the part of A. to take it, and no other consideration, is void. Burnet v. Bisco, 4 Johns. 235. So a contract in writing to convey lands at a fixed price and within a stated time, where the other party did not himself take, and nothing was paid or agreed to be paid by him, was held void. Bean v. Burbank, 16 Me. 458. Again, where the purchaser at an execution sale gave the defendant a written promise to re-convey upon the payment of a specified sum by a day named, but the defendant did not bind himself to make such payment, the promise was held to be without consideration. Mers v. Franklin, 68 Mo. 127. The following case is yet more exactly in point, viz. It was held that a written agreement under which one party was to deliver to the other prairie hay "not to exceed two hundred tons," payment to be made on delivery of designated instalments, did not confer upon the latter party a right to enforce delivery to the limit mentioned, was therefore without complete mutuality and left it optional |