
    Cherry vs. Smith.
    1. The fact, that an agreement is optional with one of the parties, and obligatory as to the other, does not destroy its validity. If there be a sufficient consideration on both sides, it is mutual and valid.
    2. Mutual executory undertakings constitute a sufficient consideration, and, therefore, a stipulation on the part of Smith to deliver salt when called on by Cherry, and by Cherry to pay for the salt when delivered, is a mutual and valid agreement, founded on a sufficient consideration.
    Cherry instituted an action on the case in the circuit court of Haywood comity, against Smith and others, and declared on. an agreement which was in the following words:
    “We agree to ship and forward to Daniel Cherry, Esq., Cherryville, Tennessee, a number of barrels of salt, not to exceed one hundred and fifty, when called on, at the rates of fifty cents per bushel, or fifty pounds re-weighed at the Mississippi, he, the said Cherry, giving his note negotiable and payable in the Union Bank at Jackson, Tennessee, the 1st day of January, 1838. This 17th day of August, 1837.
    B. B. Smith & Co.
    The salt we have on hand is considered of the first quality.” The defendants pleaded non-assumpsit, and the issue thereupon was submitted to a jury, who returned a verdict of $266 62J for the non-delivery of the salt, which was demanded by the plaintiff. On motion the court arrested the judgment, and the plaintiff appealed.
    
      Strother, for the plaintiff.
    The question submitted by the record for the decision of the court is, whether the agreement upon which the plaintiff’s action is brought, is sufficient in law to raise such a contract as is binding upon the defendants.
    
      It is contended for the plaintiff, that the agreement constitutes a valuable consideration:
    ■ 1st. Because it stipulates, that whatever number of barrels of salt the defendants should ship and forward to the plaintiff was by him to be paid for, by his executing his promissory note payable the 1st of January, 1838, in the Union Bank at Jackson.
    2nd. It is contended for the plaintiff, that there is mutuality in the contract; because the defendants were not bound to deliver any salt, until the plaintiff tendered them his note. This constitutes a quid pro quo, which maltes the mutuality, and it is not the giving each party a right of action, for some contracts are binding on the one party and not on the other, but at the discretion of the latter. See 3 John. Cases, p. 60: 13 Mass. Rep. 91: 14 John. Rep. 487.
    3rd. Although, by the terms of the contract, it was at the option of the plaintiff to take any number of barrels of salt he might designate, yet this does not make it a nude pact, for a contract may be so made as to be optional with one of the parties, and binding on the other- See 2 John. Cases, 253, and 3 John. Cases, 81.
    
      Loving, for the defendant.
    The defendants in error insist, that the memorandum or paper writing declared on in the declaration of the plaintiff Cherry, and which is the foundation of this action, is not sufficient in law to authorize a recovery against the defendants.
    1st. Because the defendants say that the same does not constitute a contract.
    What is a contract? It is the reciprocal or mutual assent of two or more persons competent to contract. There must be a good and valid consideration, &c. The assent or consent must be mutual; and every agreement, therefore, ought to be so certain and complete, that each party may have an action upon it; and the agreement would be incomplete if either party withheld his assent to any of its terms. The agreementmust, in general, be obligatory on both parties, or it binds neither. Vide Chitty on Con. 3 & 4, and 2 Kent’s Com. 449, 450.
    
      So a written agreement “to remain with A. B. two years, for tlie purpose of learning a trade,” is not binding for want of an engagement in the same instrument by A. B. to teach. Vide Lees vs. Whitcomb, 5 Bingham, 34. And in a case in which it was attempted to charge a defendant upon an award, Lord Kenyon held it was necessary to prove that the plaintiff also had agreed to be bound by the award; observing that otherwise there was no mutuality, and, therefore, the defendant’s agreement was a mere nudum factum, and not binding on him.
    
      No contract is raised by a mere affirmation in discourse — a mere overture, or offer to enter into an agreement, not definitively and expressly assented to by both parties. 7 John. Rep. 470.
    And where A. signs a writing, declaring that he will sell B. his house at a certain price, this is a mere proposition, and not an agreement or contract. Vide 12 John. Rep. 190, the case of Tucker vs. Wood.
    
    The contract or agreement declared upon, is not, in our estimation, binding, but is a mere overture or proposition. The defendants say, “we agree to ship and forward to Daniel Cherry, Esq., of Cherry ville, a number of barrels of salt not to exceed one hundred and fifty, when called on, at the rates of fifty cents per bushel, or fifty pounds re-weighed at the Mississippi, he the said Cherry giving his note, negotiable and payable in the Union Bank at Jackson, Ten., the 1st January, 1838. And the salt we have on hand is considered of first quality.”
    What is this but a mere proposition to ship and forward? The law requires something more. There must be on the part of the vendor an agreement (where the contract is not executed, but executory as in the present case) to sell and deliver the goods or article sold at a future day, and for a stipulated price, and the vendee must agree to accept and pay the price agreed upon, or it will give neither party a right of action. 2 Kent Com. 450.
    Why should the defendants say, “that we agree to ship and forward a number of barrels oí salt, if indeed they had actually sold and promised to deliver to the plaintiff a number of barrels of salt not exceeding one hundred and fifty, at a future day?
    
      Why should the defendants say, “that the salt we have on hand is considered of the first quality”? if indeed they had actually made the sale, and the plaintiff had actually purchased; in that case he would be the purchaser of the salt, whether good or bad, of which he was the judge himself, and of or about the quality of which it would have been unnecessary for defendants to have spoken. And, hence, we conclude, as the words, “we agree to ship and forward,” are used instead of sell and deliver, that this was a mere overture or proposition to sell and deliver; and the words, “the salt we have on hand is considered of first quality,” are mere expressions of recommendation and praise of the salt, instead of warranty of the quality of salt sold to the plaintiff.
    Where is the mutuality in this instrument of writing? Where is the obligation on both parties to make it binding and good in law ?
    It purports to bind the defendants, but there is no obligation on the plaintiff Cherry, to give the defendants an action against him. How many barrels of salt does Cherry agree to take ? The contract (if it be one) says, a mrnher not exceeding one hundred and fifty. When is Cherry bound to take the salt, “in number not exceeding one hundred and fifty barrels”? The writing is silent as to the time when he shall do so, but the defendants are to ship and forward it to him, when he Cherry calls on them.
    Suppose Mr. Cherry should never call to get the salt — a number of barrels not exceeding one hundred and fifty — where would be the defendant’s right of action ? Where would be the obligation in the paper, upon which Cherry could be sued? Cherry has the paper writing in his own pocket — salt declines in price — and he declines to take any number of barrels, and thus the pretended contract comes to an end.
    What has B. B. Smith & Co. been doing in the mean time. They have been holding their salt — a number of barrels, at least up to one hundred and fifty, of first quality — declining to sell and deliver to other persons, waiting the will and pleasure of Mr. Cherry, who may never come, or if he come at all, may discharge himself by taking the pitiful number of some 6 or 8 barrels of the salt, and justifying himself therein by the contract, as he might, at his good will and pleasure, have any number not exceeding one hundred and fifty.
    But suppose salt advances in price, then Mr. Cherry is prompt; his interest stimulates him; he calls on the defendants and demands one hundred and fifty barrels of salt, of first quality, to be forthwith shipped' and forwarded to him at bis store, at Cherryville, and he then, for the first time, proposes to accept and pay for the salt, and do such things on his part as we insist he should have done in the first instance to make the contract valid; to malte it mutual, and to give each, the one against the other, a right of action for a breach of the contract.
    2nd. This contract is void for want of consideration. It is a mere proposition on the part of defendants, and without mutuality. Nothing was to be done by the plaintiff; it was optional with him whether he would comply or not on his part, and the defendant derived no benefit or advantage whatever from the proposition. See the case of Cook vs. Oxley, 3 Penn. Rep. 653, which is in point to show the contract void.
    In contracts, where the promise of the one party is the consideration for the promise of the other, promises must be concurrent and obligatory upon both parties at the same time. Vide Chit. 1st vol. 297, and 1 Cains’, 594.
   GKfiEN, J.

delivered the opinion of the court.

This is an action on the case on the following contract: “We agree to ship and forward to D. Cherry, Esq., Cherryville, Tennessee, a number of barrels of salt, not to exceed one hundred and fifty, when called on, at the rates of fifty cents a bushel, or fifty pounds re-weighed at the Mississippi, he the said Cherry giving his note, negotiable and paying in the Union Bank at Jackson, Tennessee, 1st January, 1838. This 17th day of August, 1837. B. B. Smith & Co.

“The salt we have on hand is considered the fii’st quality.”

The defendants objected at the trial below to this paper, when offered in evidence, but the court overruled the objection and permitted it to be read. The plaintiff obtained a verdict for $266' 62£ damages for the non-delivery of the salt when demanded by Cherry. The court then on motion arrested the judgment, to which the plaintiff excepted, and appealed in error to this court. The defendants insist that the judgment of the couit is correct; because 1st. The paper is not a contract, but a mere overture to make one. 2d. If a contract, it is not binding, because there is no mutuality; and Sd. Because it is nudum pactum. As to the first point, we think the paper contains an undertalcing on the part of the defendants. They say, “we agree to ship and forward,” &c., thereby obliging themselves to perform what they thus agree to do. 2d. As to the second point, we think there is mutuality in this contract. The fact that the agreement is optional as to one of the parties, and obligatory as to the other, does not destroy its mutuality. If there be a sufficient consideration on both sides, it is mutual. 3d John. Rep. 81: 2d do. 253: 13 Mass. 91. The stipulation here is, by the one party, that they will deliver the salt when called on, and by the other, that he will pay for the salt so delivered at fifty cents per bushel. This constitutes the mutuality. These promises, the one in consideration of the other, are sufficient to make the contract binding. The agreement on the part of Cherry is to pay for the salt at fifty cents per bushel, and he cannot claim the performance of the engagement on the part of the defendants, unless he is ready to fulfil his own as set out in the contract. It cannot, therefore, be regarded as a naked undertaking by one party only; for mutual executory undertakings constitute a sufficient consideration. 3d John. Rep. 81.

Let the judgment be reversed, and this court proceeding to give such judgment as the circuit court should have rendered, order that judgment to be entered upon the verdict of the jury.  