Opinion
Appeal from the First Judicial District of Los Angelos County.
This action was brought upon an agreement between the plaintiff and defendant, which set forth, that about the 15th day of June, 1852, the plaintiff and defendant entered into a contract, whereby the defendant agreed with the plaintiff to sell, and pick from the vines, and deliver to plaintiff, at the vineyard of defendant, so many of the grapes then growing in said vineyard, as plaintiff should wish to take the present year, the plaintiff to have the first grapes that were ripe, for which plaintiff agreed to pay defendant ten cents per pound, cash, on delivery; and plaintiff avers, that on the 19th Aug., 1852, he notified the defendant that he wished to take of said grapes 1900 pounds, and tendered the defendant $ 190 in payment therefor, and requested the defendant to pick and deliver the said quantity to the plaintiff; but that defendant refused to deliver the same or any part thereof.
The defendant denied all the allegations of the bill, and the cause was tried by a jury, who were instructed by the Court that the contract set up in the plaintiff's bill was void, for want of a binding consideration on the part of the plaintiff, which plaintiff excepted to; and judgment being rendered for the defendant, the plaintiff took this appeal.
COUNSEL
Argued that there was no mutuality in the contract, as set out, and cited Chit. on Cont. 27, 28.
The contract is void by the Stat. of Frauds. (Statute of 1850, 267, sec. 13.)
Sutherland, for Respondent.
No brief for appellant on file.
JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court. Wells, Justice, concurred.
OPINION
HEYDENFELDT, Judge
When the agreement, which is the subject of this action, was first entered into, it amounted to a mere offer on the part of the defendant, which the plaintiff had the right to accept or reject, and the defendant to retract, at any time before acceptance. When, however, the plaintiff named the amount of grapes which he would take under the offer of the defendant, the contract was complete, and both parties were bound by it.
The Court below, therefore erred in deciding for the defendant, and the judgment is reversed, with costs.