
    McClellan v. Cunningham.
    
      CONTRACT. — Evidence of Mutuality*
    
    A written promise to receive certain goods at a specified time and place at the market price, and a subsequent refusal and tender of damages in writing, are sufficient proof that the agreement was mutual and not nudum •pactum.
    
    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 he delivered at the house of the defendant in error, in Jonesborough, at the market price, on the 15th of March, 1840. Much testimony was taken 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 Jonesborough. The defendant in error proved on the trial that the article had been bought and sold in Jonesborough 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 unwillingness 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 dollars, 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
    
      The cause was argued by Thos. D. Arnold for plaintiff in error, and Thos. A. R. Nelson for defendant in error.
   Reese, J.,

delivered the opinion of the'Court:

The 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 authorise the jury to infer an agreement on the part of Cunningham to deliver. the morus multicaulis roots and cuttings.

Judgment affirmed.  