
    *James K. Douglass & Co. v. Charles Spears.
    A memorandum signed by the defendant only, whereby he agreed to deliver a quantity of cotton, takes the case out of the statute of frauds, though not signed by the purchaser, 
    
    This was an action of assumpsit, founded upon the following written memorandum :
    
      “ I hereby engage to deliver J. K. Douglass & Co., seventy square bales of cotton, all in good order, ten days from this date, at Sumter’s landing, they allowing me twenty-five cents per pound, payable sixty days from date of delivery ; as many of the bags as are rent, I engage to have all mended before delivery, and if the sample sent does not meet Mr. Douglass’ approbation, this agreement is not considered as binding, only I am to have notice in two days from this date to that effect, this 28th March, 1817. Charles Spears.”
    The declaration alleged that the sample was approved of within the two days specified in the contract, of which the defendant had due notice, and the breach assigned, was, that defendant had not delivered the cotton, or any part of it. It appeared in evidence, that the plaintiff’s boat was ready to receive the cotton at the time specified, and that the plaintiffs had used all diligence to procure a delivery, first by sending a boat to receive it, and afterwards in sending wagons.
    The cotton was weighed by the appointment of the defendant, and security which had been demanded by him, though not required by the agreement, had been tendered for the payment of the cotton.
    It appeared further in evidence, that on the evening previous to this contract being entered into, information had been received that cotton had risen in Charleston two cents in the pound, but it did not appear, by any positive testimony, that plaintiffs were apprised of it, and the defendant, after the circumstance of the rise was communicated to him, observed that as the bargain was made, he hoped Mr, Douglass would derive profit from it.
    *The counsel for the plaintiffs, in the argument of the case, insisted upon their right to recover the difference between the price agreed to be given for the cotton and the rise which had taken place.
    For defendant, it was argued that the contract was not mutually binding at the time of its being entered into, and consequently the defendant had a right to refuse a compliance with it.
    The jury found for the plaintiffs §436 26. When the verdict was handed in it appeared from something which was said by the foreman, that they had allowed for wagon hire. But as the declaration contained no charge of that kind, the presiding judge recommended to the jury a reconsideration of their verdict, and to deduct what had been allowed on that account. The jury returned a verdict diminished only by one cent.
    Defendant moved in arrest of judgment, on the following grounds, viz.:
    1. That from the contractas set forth in the declaration of plaintiffs, they ought not to recover, inasmuch as the contract was not, at the time of the signing and executing the same, as appears by the said declaration, and the copy of the contract endorsed thereon, mutually binding on each of the parties, and therefore not, in law, a contract binding on the defendant to perform. And for the non-performance of which, plaintiffs have no right to recover of the defendant.
    2. Because the agreement declared on is nudum pactum, as there does not appear to have been mutual considerations on the part of the plaintiffs, and the defendant alone bound.
    And if those grounds should not avail, it is moved that a new trial be granted on the following grounds :
    1. That the written instrument produced in evidence is not a contract binding on the defendant, or upon which the plaintiffs can recover; not being mutually obligatory when entered into, and that the presiding judge mistook the law, and misdirected the jury, in saying to them that it was a good contract in law, on which the plaintiffs might recover
    *2. Because the jury found damages for boat and wagon hire, although ri-onq the plaintiffs’ declaration had no count on which such finding could be L u predicated, and it was not claimed by plaintiffs’ counsel; and neither the law, or facts of the case, warranted the finding, which is excessive and unlawful.
    3. Because the notice given of the approval of the sample of the cotton, by the plaintiffs, was not in time, supposing the agreement was binding in law.
    
      
      
        Roget v. Merritt and Clap, 2 Caines’ Rep. 117. R.
    
   The opinion of the Court was delivered by.

Gantt, J.

It is difficult to conceive, when reference is had to the contract entered into by the defendant in this case, how an opinion could be entertained that it was not mutually binding between the parties. It is a contract on the part of the defendant to deliver cotton at a certain time to be paid for at a certain time and price, by the plaintiffs, with a condition annexed in favor of the plaintiffs, whereby they are not to be bound by the terms of it, should they disapprove of the sample of the cotton, which was sent for inspection. The contract is one in presentí, subject to this defeasance alone, on the part of the plaintiffs.

The sample of cotton was approved of, and the defendant had notice within the prescribed period of two days, a fact averred in the declaration, and satisfactorily established in proof.

Is it supposed, that because both parties did not sign this written contract, that therefore it was not obligatory upon the one who did ? The case of Egerton v. Matthews, 6 East, 301, answers the objection. There the action was brought upon the following memorandum in writing: “ We agree to give Mr. Egerton 19d. per pound for thirty bales of Smyrna cotton, customary allowance, cash three per cent, as soon as our certificate is complete.”

(Signed,) “Matthews & TuRnbuld.”

It was there contended, that the contract being altogether executory, and no consideration appearing *on the face of the writing for „ the promise, nor any mutuality in the engagement, it was void <- by the statute of frauds. Lord Ellenborough said, this was a memorandum of the bargain, or, at least, so much of it as was sufficient to bind the parties to be charged therewith, whose signatures to it is all that the statute requires.” The first ground for arrest of judgment must fail.

Levy, for the motion. Blanding, contra.

On the second ground in arrest, it is almost unnecessary to say that this contract cannot he considered in the light of a nudum pactum.

Any decree of reciprocity will prevent the agreement from being considered in that light. Here the consideration was expressed, and considered by the defendant as the fall value of the article which he contracted to deliver.

The objections in arrest of judgment being disposed of, the first ground taken for a new trial, and which is bottomed upon a supposed want of validity in the contract to bind the defendant, must fall with them.

In regard to the second ground for a new trial, that the jury found damages for boat and wagon hire, this, at the utmost, is only conjectural. It does not appear by the verdict; and the observations made by the Court to the jury, and the alteration to the verdict thereupon, afford ground to believe that no allowance was made for wagon hire.

They may have allowed, and probably did, damages on account of the demurrage of the boat, and this they had a right to do. Nor are the Court prepared to say, in a case of this kind, where the party goes for general damages, that the jury might not have taken into their consideration disappointment on account of the wagons which had been sent for the cotton.

The observations of the presiding judge grew out of the impulse of the moment, and were introduced ex majori cautela.

The evidence disproves the correctness of the third ground taken, as it *2111 was beyond doubt express *and satisfactory, that defendant had J notice that the sample was approved of by Douglass within the two days.

The defendant, therefore can take nothing by his motion, and this is the opinion of the Court,

ColcocK, Johnson and Richaedson, JJ., concurred.  