
    Kraft, Holmes & Co. v. E. B. Sims.
    (No. 2500, Op. Book No. 4.)
    Appeal from Grayson County.
   Opinion by

White, P. J.

§ 404. Contract, incomplete when, and rights of parties to mutuality in. Reinhart, a drummer of K., H. & Co.', made a contract with Sims for the sale of certain goods. Sims reserved the right, at any time within ten days, to rescind the contract by countermanding his order for the goods. If he, Sims, did not rescind in ten days, then, upon receiving no notice to that effect from him, the goods were to be shipped him by EL, H. & Co. Before the expiration of the ten days, instead of Sims rescinding, EL, H. & Co. notified him that they declined to ratify the sale made by their agent, and refused to send him the goods ordered. The question is, was. there a valid, subsisting contract, such as could have been enforced by either party, until after the expiration of the ten days? Most clearly, El., H. & Co., by shipment of the goods to Sims before that lapse of time, could not have rendered him liable for a specific performance, viz., to take the goods and pay the price agreed on. Sims having the right to countermand and rescind, did not the same right inure to EL, H. & Co.?

May 5, 1883.

It is elementary that “a promise is a good consideration for a promise,” but it is further settled that “a promise is not a good consideration for a promise 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, on Cont. (5th ed.) pp. 448-9.]

§ 405. Assent of parties to a contract. A contract requires the assent of the parties to an agreement, and this agreement must be obligatory, and the obligation must in general be mutual. [1 Pars, on Cont. 475.]

§ 406. Incomplete contract. In Eskridge v. Glover, 5 Stew. &. P. 264, it was held that an incomplete contract or agreement which one of the parties has the option of completing at a particular day, raises a mutual right of rescission in the other party at any time before the ratification by the first. [1 Pars, on Cont. (5thed.) p. 476, and note.] Held, that the contract in this case was incomplete, and both parties could rescind in the ten days.

Reversed and remanded.  