E. T. HINOTE, PLAINTIFF IN ERROR,

v.

P. BRIGMAN AND S. C. CRUTCHFIELD, SURVIVING PARTNERS OF BRIGMAN & CO. DEFENDANTS IN ERROR

Per Cttriam

(After statmg the facts.)

No question is presented on the record before the court as to any of the pleadings in the case.

The first count of the declaration declares upon a contract, the terms of which are stated, and it is alleged to be in writing, but the contract is not made a part of the( count. •

The second count declares upon a completed contract made the twentieth day of December, 1891, the terms of which are stated, and it is alleged that defendant then promised to sign a written obligation containing, the terms of the agreement whenever plaintiffs would have the same prepared, and that they did thereafter prepare it and defendant signed it, a copy being attached as a part of the declaration. This second count we construe to.be upon a completed verbal contract, made on the twentieth day of December, 1891, the terms of which were then assented to by both parties. If the terms of the contract were matually agreed upon and the parties came to a definite conclusion in reference to the same, the fact that it was further agreed that the terms of the agreement should be put in writing and signed will not affect the contract made, though it was never reduced to writing and signed. Bell v. Offutt, 10 Bush (Ky.) 632; 7 Am. & Eng. Ency. Law (2nd. ed.) 140 and cases cited.

The contract alleged in the declaration was a mutually binding completed contract containing mutual promises on the part of both parties in reference to matters, about which they could verbally contract 1 Parsons on Contracts (8th ed.) * 448.

The first assignment of error is based upon the ruling of the court admitting in evidence over the objection of defendant, the paper writing made a part of the second count of the declaration. One objection to it is that it is void for want of mutuality, not being signed by plaintiffs. The. writing could not properly be admitted under the first count of the declaration as a contract between the parties as it purports to be a mutual obligation and it is not signed by plaintiffs, and therefore not binding on them. If introduced under the second count for the purpose of proving the contract allegéd to have been made in December, 1891, it should have been excluded as it could not as independent evidence prove such, contract. The plaintiffs, however, alleged a contract in December, and that defendant then promised to sign a written agreement containing its terms whenever plaintiffs would have the same prepared, and upon proof of the verbal contract it would be proper to admit the writing in proof of the .allegation made, and as affording evidence of the terms of •the áetual agreement. At the time plaintiffs offered the writing in evidence there was no testimony as to the verbal agreement made in December, and the court should not have admitted it. It appears, however, that plaintiffs •subsequently introduced testimony tending to prove such -contract and the objection was thereby obviated.

It is further contended by the plaintiff in error that •even conceding that the contract is binding upon the parties to it, that yet it is so indefinite in its terms as to be incapable of enforcement. The contention is that it is ' indefinite in its failure to specify the size of the logs to be delivered and squared, and that consequently it is impossible to ascertain definitely how much the plaintiffs would have been titled to receive for the work of squaring tliem, since they were to be paid for th?i work at the rate of two cents per cubic foot. This contention we "think is untenable. The contract, the terms of which are shown bv the written memorandum, provided for the delivery by (he defendant of three thousand “saw logs,” and 'to pay to the plaintiffs two cents per cubic foot for ' “squaring said logs,” and the plaintiffs thereby agreed to : “square, 3000 pine saw logs” at the rate of two cents per cubic foot. 'The term “saw logs” seems by the •evidence adduced to have a well understood meaning among those habitually dealing in that-commodity, and “saw logs,” designed,, as pro Vided by this contract, to be converted into “squared”'' timbers, seems also by the evidence to be understood among lumber dealers as calling for a log that will square out at least eighteen cubic feet to the log, though upon, this latter point there was conflict in the evidence, some:' of the witnesses contending that a saw log designed fore squared timber to be merchantable must contain at least: twenty-five cubic feet. The rule in such cases is that; where words or phrases used in a contract have acquired: a definite meaning generally or by local usage, or when? used in reference to certain things, or commodities, have? acquired a definite meaning among those dealing with such things or commodities, and the language used in the writing is such that the court does not understand it, oral testimony is admissible to explain the meaning of such words or phrases. 2 Jones on Evidence, Sec. 461; 1 Greenleaf on Evidence, Sec. 280; Gorrisen v. Perrin, 2 C. B. Rep. N. S., (89 E. C. L.) 681; Soutier v. Kellerman,, 18 Mo. 509; Long vi Davidson, 101 N. C. 170, 7 S. E. Rep.. 758; Walls v. Bailey, 49 N. Y. 464, S. C. 10 Am. Rep. 407; Ganson v. Madigan, 15 Wis. 144, S. C. 82 Am. Dec. 659. Under this rule the court below committed no error in admitting parol testimony in explanation of the meaning of the quoted words and phrase* used in the contract, to the admission of which testimony objections were made' and exceptions taken.

One of the pleas sets up the defense that it was expressly agreed by and between the parties at the time of' agreeing upon the terms of the contract that before it should become binding or effective ‘it should be reduced' to writing and signed by both parties, and that it was never signed by plaintiffs. The copy attached as a part of the declaration and put in evidence shows that it was-signed only by tbe defendant HLiotc. The record shows that plaintiffs joined issue upon this plea as they did upon all the .others. If it was the express agreement of the parties at the time of entering into the verbal agreement that it was not to be binding or effective until-reduced to writing and signed by both parties, then there was no contract until it was so reduced to writing and signed. The rule as announced in Mississippi and Dominion Steamship Company, Limited, v. Swift, 86 Maine 248; 29 Atl. Rep. 1063, is-that “if the party sought to be charged intended to close a contract prior to the formal signing of a written draft, or if he signified such an intention to the other pal-tv, he will be bound by the contract actually made, though the signing of the written draft be omitted. If on the other hand such party neither had nor signified such an intention to close the contract until it was fully expressed in a written instrument and attested by signatures, then he will not be bound until the signatures are affixed. The expression of the idea may be attempted in other words: if the written draft is viewed by the parties merely as a convenient memorial, or record of their previous contract, its absence does not affect the binding force of the contract; if, however, it is viewed as the consummation of the-negotiation, there is no contract until the written contract is finally signed.” Morrill v. Tehama Consolidated M. & M. Co., 10 Nev. 125; 7 Am. & Ency. of Law (2nd. ed.) 140. The plea clearly sets up the defense that the parties agreed that the contract relied on should not be binding or effective until .reduced to writing and signed by both parties and the joinder thereon presented this issue to be passed upon by the jury. One oí the plaintiffs testified that the contract was made in December, 1891, but was subsequently reduced to writing on January 11th, 1892; that several hundred logs had already been delivered at their .’hill before any contract was made and defendant continued to deliver logs until sometime in April, 1892, when he ceased to deliver any more. Defendant introduced evidence tending to sustain fully the plea that it was agreed expressly that the contract was not to be binding or effective until reduced to writing and signed by both parties, and that defendant did not know plaintiffs had not signed the agreement until after he had furnished the logs delivered.

The court instructed the jury, in effect, that if it was the agreement between plaintiffs and defendant that the contract entered into and reduced to writing was to be signed by both parties and recorded, and the evidence showed that plaintiffs failed to sign the same and that it was not recorded, and that defendant knowing the fact entered upon the execution of his part of the contract after-he signed it, he waived such conditions and could not avoid the contract on that ground^

The defendant asked the court to instruct the jury that if they believed from the evidence that at the time of making the original vei’bal contract it was .the intention of the parties that it should not be binding unless reduced to writing and signed by the parties, and that the written -contract was never-signed, by plaintiffs, they should find for defendant. The court refused to give the instruction as requested, but modified it by adding the qualification that unless the signing by plaintiffs was waived by defendant entering upon the performance of the contract •after he had signed it, and knowing it was not signed by plaintiffs. The instruction given by the court and the modification of the one requested by defendant was duly excepted to and assigned as error. They exhibit the view on this branch of the case that was presented by the court to the jury, and we think it was erroneous, and on the evidence produced may have misled them to the prejudice of the defndant. The established rule in this State is that the instructions of the court to the jury must be confined to the issues made by the pleadings. No recovery can be had upon a cause of action however meritorious, or-however satisfactorily proven that is in substance variant from that which is pleaded by plaintiff. Parrish v. Pensacola & A. R. Co., 28 Fla. 251, 9 South. Rep. 696; Jacksonville, T & K. W. Ry. Co. v. Neff, 28 Fla. 373, 9 South. Rep. 653, and authorities therein cited. In Hooker v. Johnson, 10 Fla. 198, it was held that when in an action of covenant the plaintiff avers full performance on his part and that is the issue to be tried, it was improper for the judge so to instruct the jury as to raise the question of excuse for non-performance by him. In that case the court further held that while it was error to give the charge, it satisfactorily appeared from the evidence that the jury were not misled by it. On the state of the evidence in the present ca.se we are unable to affirm that the jury were not misled a.s to the issue to be tried by the charges given. The issue raised on the plea was whether it was agreed by the parties that their agreement should be reduced to writing and signed by both parties before there was any bin ding, contract between them and the court in effect instructed the' jury that they might still find for the nlaintiffs, if they believed from the evidence that defendant waived the signing on the part of plaintiffs. a question not presented by. the pleadings. For this error the judgment must be reversed, and it is so ordered.