
    McClellan v. Cunningham.
    (S. C., Thomp. Cas., 30-31.)
    Knoxville,
    September Term, 1847.
    CONTEACTS. Evidence justifying- jury’s finding of mutuality.
    A written agreement to receive certain g-oocls to be delivered at a specified time and place at the market price, and a subsequent refusal to receive them, and an offer to pay the damag-es in writing, are sufficient evidence to warrant a jury’s finding- that the agreement was mutual and not nudum pactum. [On the question of “Property Contracts and Tender,” see Code, secs. 3192, 3193, and notes.]
    The plaintiff in error, in September, 1839, executed an instrument not under seal, in which he agreed to receive of the defendant in error five hundred dollars’ worth of morus multicaulis roots and cuttings, to be delivered at the house of the defendant in error, in Jonesborough, at the market price, on the 15th of March, 1840. Much testimony was talcen on both sides as to whether the article was of any value on the 15th of March, 1840, and whether there was, at that time, any market price for it in the town of Jones-borough. The defendant in error proved on the trial that the article had been bought and sold in J onesborough both before and after the 15th of March, 1840, and also read in evidence a letter addressed to him by the plaintiff in error, on the 13th of March, 1840, from Washington city, informing him of his unwillingnessi to receive multicaulis, but stating his willingness to pay any damages the defendant in error might sustain in consequence of his failure. The cause was twice submitted to a jury of Sullivan. On the first trial, they assessed the damages at five hundred dollar’s, and this court, regarding it as an executory, and not as an executed contract, at the last term reversed the judgment. On the last trial, the jury rendered a verdict for $120, and from the judgment thereon the plaintiff in error prosecuted this appeal.
    The cause was argued by Thos. D. Arnold for plaintiff in error, and Thos. A. K. Nelson for defendant in error.
   Reese, J.,

delivered tbe opinon of tlie court:

Tbe promise contained in the paper signed by McClellan was not nudum pactum, but the word "deliverable” in that paper, and the letter of McClellan, from Washington city, were sufficient to authorize the jury to infer an agreement on the part of Cunningham to deliver the morns multicaulis roots and cuttings.

Judgment affirmed.  