# Fry v. Foster > Supreme Court of Oklahoma · March 16, 1937 · 179 Okla. 398 URL: https://www.frixlaw.com/law-library/cases/3823477 ## Case - **Full name:** Fry v. Foster. - **Court:** Supreme Court of Oklahoma - **Decided:** March 16, 1937 - **Citations:** 179 Okla. 398; 65 P.2d 1224; 1937 OK 173; 1937 Okla. LEXIS 284 - **Precedential status:** Published - **Opinion:** Opinion of the court by Busbx - **Judges:** Busbx, Osboen, Bayless, Eiley, Welch, Coen, Gibson, Huest, Phelps - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3823477 ## Opinion text BUSBX, J. This is an action by R. M. Fry, an alleged purchaser of the right to enter upon and cut and remove timber from a certain tract of land located in McCurtain county belonging to J. M. Asieren, a resident of Detroit, Mich. The plaintiff, Fry, is seeking an injunction to prevent the cutting and removal of the timber by Bon Foster, who claims the same under an alleged prior contract said to have been entered into between him 'and Askren through certain informal communications. The action was commenced in the district court of McCurtain county on September 4, 1936. A temporary injunction was obtained at the time it was instituted. Issues were promptly framed by appropriate pleadings, and the cause was heard on its merits on September 23, 1936, resulting in a judgment for the defendant which operated as and included an' incidental adjudication that the' temporary injunction’ should be dissolved. The plaintiff appeals. The order of appearance is the same in this court as in the court below. We shall employ the -trial court designation in referring to the plarties. The contract under which the plaintiff *399 claims the timber is in writing and was entered into between the landowner, J. M. Askren, and the plaintiff on August 28, 1986. it was admittedly effective to convey the right to cut and remove timber from the land unless J. M. Askren Wad entered into a binding agreement with the defendant with reference to the same timber. The alleged agreement on which the defendant relies was admittedly prior if a binding and enforceable (agreement existed at all. No question is raised in connection with the remedy invoked or the parties to the action. Our inquiry is therefore narrowed to the question which, as stated in p’aintiff’s brief, is: “The only question in this case is whether or not the defendant in error had a written or an express contract, negotiated and consummated by letters and telegrams exchanged between the defendant in error and J. W. Askren, the owner of the land and timber.” A contract is an agreement to do or not to do a certain thing (section 9389, O. S. 1931). The contract comes into existence through the acceptance of an offer, but the acceptance must conform to the proposal, otherwise it becomes a new proposal, or counter offer '(section 9130, O. S. 1931). An agreement which constitutes a contract may come into existence by metas of informal communications between the parties. Foster v. West Publishing Co., 77 Okla. 114 , 186 P. 1083 . Such informal communications may create the obligation notwithstanding an expressed expectation of the parties to subsequently execute a fornfal contract, if it appears that the parties intended to obligate themselves prior to the execution of the formal agreement. Western Hoofing Tile Co. v. Jones, 26 Okla. 209 , 109 P. 225 , Ann. Cas. 1912B, p. 129; Day v. Ferguson, 129 Okla. 22 , 263 P. 126 ; Pierce Petroleum Corp. v. Hales, 147 Okla. 42 , 294 P. 160 ; Universal Products Co. v. Emerson (Del.) 179 A. 387 , 100 A. L. R. 956. Similarly, it is universally agreed that a contract may be made to make a future contract. Williston on Contracts, vol. 1, p. 36, par. 28; 6 R. C. L. 617, p. 38. A decision of this case requires an analysis of the correspondence between the defendant, Bon Foster, and the landowner, J. W. Askren. On July 15, 1936, Foster wrote to Askren as ‘ follows: “Bethel, Okla. “July 15, 1936 “J. W. Askren, “Dear Sir: “I am writing you in regards to your timber in S. 32, Township 3 Range 24. T will give yon Seven hundred Dollars for this tract of timber so let me hear from you by return mail. Yours truly, Bon Foster, Bethel, Okla.” . This was clearly an offer. To the letter the following reply was made by Askren: “Detroit, Mich. July 20th '36 “Mr. Bon Foster “Bethel, Okla. “Delar Sir “Your letter of the 16th ‘at hand about the timber. I get a good many letters about the timber but I do not really want to sell it but can’t look after it much. A few years ago a big lumber firm in Kansas City, Mo. wanted me to give them the first chance if I decided 'any time in future to sell. I might consider selling the timber under conditions such as the size of timber removed and the fire hazard left behind. Some of the com-panyg cut from 10 inches np only. I would not want the smaller timber removed and would want to know how soon the timber would be removed. Yours truly, J. W. Ask-ren, R. 1, 'Box 1050, Detroit, Mich.” This was not an acceptance of the offer. It was in the nature of a rejection thereof, coupled with an invitation to negotiate further. It contains the implied suggestion that Askren might be willing to seT the right to cut timber over ten inches (in diameter). The defendant assumed from the letter a willingness on the part of Askren to sell, and in aeoord with that assumption wrote as follows: “Bethel Okla “July 25 1 936 “Mr. J. W. Askren, “Dear Sir “I reed your letter July 24 in regards to your timber. I will not cut aney thing under 10 inches. I am sending contract to you to send to the bank with drfaft. Send it to the Idabel National Bank with dr&ft attached. I will pay off as soon as it comes in the contract I ana asking for 1 ye'ar but I think I can remove timber in 60 or' 99 days as you spake about the fire hazard left behind there is fire rangers that keeps the fixe out and your ,'yo said: “All the terms submitted by you are satisfactory to me. I only desire 'a copy of the formal contract for my own future protection. If you will send me such a copy, I will deposit for clearance the contract and draft.” Thus for the first time he made 'a counter offer. It constituted a new proposal. Section 9430, O. S. 1931, provides: “An acceptance must be absolute and unqualified, or must include in itself an acceptance of that character which the proposer can separate from the rest, and which will include the person accepting. A qualified acceptance is a new proposal.” The new proposal contemplated the act of mailing the contract as an acceptance. Upon receipt of this latter letter Foster mlailed the contract. Were the parties then bound? In Western Roofing Tile Co. v. Jones, 26 Okla. 209 , 109 P. 225 , supra, we said in syllabus 1: “Where piarties to an agreement make its reduction to writing and signing a condition precedent to its completion, it will not be a contract until this is done, and this is true although all the terms of the contract have been agreed upon. (But where parties have ^assented to all the terms of the contract, and they are fully understood in the same way by each of them, the mere reference in conjunction therewith of la future contract in writing will not negative the existence of a present, contract.” Dealing with this same subject, Williston in his work on Contracts, says (vol. 1, p. 37-39) : “In the absence of such an expressed intent, mutulal assent, informally given, to make an exchange of acts or promises is sufficient. Consequently, if such assent exists, to avoid the conclusion that a contract has been formed, it must h» found as a fact that the parties impliedly agreed that until the writing was executed they should not be hound. The burden of establishing this implication of fact is on the one who denies the existence of a contract. The decisions, although not all perfectly consistent, generally conform to this test.” Upon consideration of the foregoing authorities, we conclude that upon acceptance of the counter offer by mailing the contract the parties became mutually bound. The details of the transaction were fully agreed upon. See, also, Day v. Ferguson, 129 Okla. 22 , 263 P. 126 ; Pierce Petroleum Corp. v. Hales, 147 Okla. 42 , 294 P. 160 . Foster notified Askren by wire on August 19, 1936, that he (in reliance on the correspondence) had entered and was cutting timber. Subsequently, there were two other communications which neither added to nor destroyed the contract previously made. Askren knew of the entry when he on August 28th 'attempted to sell the timber, or, rather, the right to cut and remove it, for a slightly higher price to the plaintiff herein. Since our determination of the sole question presented is favorable to the defendant, our decision is one of affirmance. OSBOEN, O. J., BAYLESS, V. C. J., and EILEY, WELCH, COEN, GIBSON, and HUEST, JJ., concur. PHELPS, J., absent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3823477. Public record. Not legal advice.