[227]*227Opinion by
Mr. Chief Justice Moore.
1, 2. It is contended that errors were committed in receiving, over objection and exception, any testimony tending to substantiate the second cause of action, and in denying a motion to instruct the jury to find for the defendant as to that cause. It is argued that the part of the writing hereinbefore quoted, which contains the only reference to the baling of any hay, is nothing more than the plaintiff’s proposal, which offer was not accepted by the defendant, and hence the second cause of action has no foundation upon which a judgment can rest. We are compelled to accede to the legal principle thus asserted. An examination of the concluding paragraph of the writing will show the defendant did not engage the plaintiff to bale any hay, or stipulate to give any consideration, if such service were performed, and for that reason there was no mutuality which is the essential characteristic of every valid contract. Thus the promise of one party without a corresponding obligation or p'romise made by the other party is voidable: Corbitt v. Salem, Gaslight Co., 6 Or. 405 (25 Am. Rep. 541). In that case, however, the writing was signed only by the defendant, which engaged to purchase from the plaintiff a stated quantity of coal, and upon the delivery thereof at a designated place promised to pay a specified price per ton. This distinction is unimportant; for in Eyser v. Weissgerber, 2 Iowa, 463, a written statement consisting of a bill of prices for certain material and work was signed by both parties, but contained no undertaking by either party nor any stipulation of any character, and it was ruled that the statement did not possess the first ingredient of a contract.
In Berry v. Harper, 4 Gill & J. (Md.) 467, it was held that in an action to recover damages for the nonper[228]*228formance of a contract the initiatory pleading should set out an agreement which was binding upon both parties. An exception to this rule might, at first thought, seem to exist. Thus in Giles v. Bradley, 2 Johns. Cas. (N. Y.) 253, it was said:
“There can be no doubt but that a contract may be so made as to be optional, on one of the parties, and obligatory on the other, or obligatory at the election of one of them.”
3. An “option” is a unilateral obligation founded upon a valuable consideration paid or promised by a party for the right to express a choice which, when exercised, consummates a binding agreement on the part of both parties. In the case at bar, as the defendant never stipulated to engage the plaintiff to bale any hay or promised to pay him therefor, there was no meeting of their minds upon this matter, and, this being so, an error was committed as alleged.
4. An exception having been reserved, it is maintained that an error, was committed in refusing to charge the jury as requested by defendant’s counsel; to wit:
“You are instructed that, if you find from a preponderance of the evidence that plaintiff failed and neglected to properly rake up certain portions of the second crop of hay, and that by reason of such neglect said hay became damaged, .the defendant Bord would be entitled to recover from the plaintiff Lender the difference between the market price of hay in good condition properly put up and the market price of said hay so damaged.”
The court in its general charge instructed the jury as follows:
“Now, the defendant sets up several counterclaims here which is for you to determine the validity of; that is, you are to determine under the evidence in the ease [229]*229of the truth of the allegations of the complaint and determine the amount that is due on the several counterclaims.”
Further in the charge the court, referring respectively to the defendant and to the plaintiff, said:
“The third counterclaim, he claims he failed to rake the hay, that is, the second cutting; that he failed and neglected the second cutting of hay in his field, consisting of 46 tons, for a period of two weeks, during all of which time the hay lay unraked, subject to and exposed to rainfall; that two thirds was piled in one heap, and the remaining one third was never shocked at all, but raked from the field, and that through the gross carelessness of the plaintiff and his servants in leaving 46 tons unraked for two weeks it became so badly damaged that most of the leaves dropped off the stems when raked, to the damage of the defendant. The burden of proving these allegations is on the defense. It will be necessary for you to find that the damage was sustained, if any, by reason of this action. ’ ’
From an examination of the language last quoted it will be seen that the court did not prescribe any rule or guide whereby the jury might determine the method of ascertaining the measure of damages. The difference between “the market price of hay in good condition properly put up and the market price of said hay so damaged, ’ ’ as stated in the requested instruction, constituted the extent of the injury which the defendant sustained, if any, by reason of the alleged failure of the plaintiff faithfully to perform the terms of the agreement. In denying the requested instruction an error was committed.
There are attached to the bill of exceptions a transcript of the entire testimony which was received and a copy of all the instructions that were given or refused, and of all other material matters occurring: at the trial. [230]*230A careful examination of the papers adverted to convinces us that in modifying the judgment by remitting the sum of $10, which was awarded to the plaintiff as damages on the second cause of action, the verdict ought otherwise to be sustained.
Mr. W. S. Wiley, for the motion.
Mr. W. E. A. Renner, contra.
The defendant as a witness testified that by reason of the plaintiff’s neglect for two weeks to rake 46 tons of the second crop of alfalfa, during which time the hay remained on the ground and exposed to several rainfalls, so that when raked most of the leaves fell from the stems, thereby leaving stalks only to be stacked, the defendant sustained damages to the extent of $2 a ton. As the jury reduced the amount of the plaintiff’s demand $109.15, it will be assumed they duly considered all the damages the defendant sustained.
Notwithstanding the commission of the errors complained of, the judgment as modified should be affirmed, and it is so ordered.
Modified and Affirmed.
Mr. Justice Bean and Mr. Justice Harris concur.
Mr. Justice Benson took no part in the consideration of this cause.
Motion overruled April 25, 1916.
On Motion to Tax Costs.
(156 Pac. 1034.)
In Banc.
Mr. Justice Burnett
delivered the opinion of the court.
5. On an appeal hy the defendant, the judgment of the Circuit Court in favor of the plaintiff was modified by requiring the remission of $10, the amount allowed by the jury on the plaintiff’s second cause of action; Mr. Chief Justice Moore writing the opinion. Both parties filed cost bills. Each claims costs and the expense of briefs and filing fee.
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[227]*227Opinion by
Mr. Chief Justice Moore.
1, 2. It is contended that errors were committed in receiving, over objection and exception, any testimony tending to substantiate the second cause of action, and in denying a motion to instruct the jury to find for the defendant as to that cause. It is argued that the part of the writing hereinbefore quoted, which contains the only reference to the baling of any hay, is nothing more than the plaintiff’s proposal, which offer was not accepted by the defendant, and hence the second cause of action has no foundation upon which a judgment can rest. We are compelled to accede to the legal principle thus asserted. An examination of the concluding paragraph of the writing will show the defendant did not engage the plaintiff to bale any hay, or stipulate to give any consideration, if such service were performed, and for that reason there was no mutuality which is the essential characteristic of every valid contract. Thus the promise of one party without a corresponding obligation or p'romise made by the other party is voidable: Corbitt v. Salem, Gaslight Co., 6 Or. 405 (25 Am. Rep. 541). In that case, however, the writing was signed only by the defendant, which engaged to purchase from the plaintiff a stated quantity of coal, and upon the delivery thereof at a designated place promised to pay a specified price per ton. This distinction is unimportant; for in Eyser v. Weissgerber, 2 Iowa, 463, a written statement consisting of a bill of prices for certain material and work was signed by both parties, but contained no undertaking by either party nor any stipulation of any character, and it was ruled that the statement did not possess the first ingredient of a contract.
In Berry v. Harper, 4 Gill & J. (Md.) 467, it was held that in an action to recover damages for the nonper[228]*228formance of a contract the initiatory pleading should set out an agreement which was binding upon both parties. An exception to this rule might, at first thought, seem to exist. Thus in Giles v. Bradley, 2 Johns. Cas. (N. Y.) 253, it was said:
“There can be no doubt but that a contract may be so made as to be optional, on one of the parties, and obligatory on the other, or obligatory at the election of one of them.”
3. An “option” is a unilateral obligation founded upon a valuable consideration paid or promised by a party for the right to express a choice which, when exercised, consummates a binding agreement on the part of both parties. In the case at bar, as the defendant never stipulated to engage the plaintiff to bale any hay or promised to pay him therefor, there was no meeting of their minds upon this matter, and, this being so, an error was committed as alleged.
4. An exception having been reserved, it is maintained that an error, was committed in refusing to charge the jury as requested by defendant’s counsel; to wit:
“You are instructed that, if you find from a preponderance of the evidence that plaintiff failed and neglected to properly rake up certain portions of the second crop of hay, and that by reason of such neglect said hay became damaged, .the defendant Bord would be entitled to recover from the plaintiff Lender the difference between the market price of hay in good condition properly put up and the market price of said hay so damaged.”
The court in its general charge instructed the jury as follows:
“Now, the defendant sets up several counterclaims here which is for you to determine the validity of; that is, you are to determine under the evidence in the ease [229]*229of the truth of the allegations of the complaint and determine the amount that is due on the several counterclaims.”
Further in the charge the court, referring respectively to the defendant and to the plaintiff, said:
“The third counterclaim, he claims he failed to rake the hay, that is, the second cutting; that he failed and neglected the second cutting of hay in his field, consisting of 46 tons, for a period of two weeks, during all of which time the hay lay unraked, subject to and exposed to rainfall; that two thirds was piled in one heap, and the remaining one third was never shocked at all, but raked from the field, and that through the gross carelessness of the plaintiff and his servants in leaving 46 tons unraked for two weeks it became so badly damaged that most of the leaves dropped off the stems when raked, to the damage of the defendant. The burden of proving these allegations is on the defense. It will be necessary for you to find that the damage was sustained, if any, by reason of this action. ’ ’
From an examination of the language last quoted it will be seen that the court did not prescribe any rule or guide whereby the jury might determine the method of ascertaining the measure of damages. The difference between “the market price of hay in good condition properly put up and the market price of said hay so damaged, ’ ’ as stated in the requested instruction, constituted the extent of the injury which the defendant sustained, if any, by reason of the alleged failure of the plaintiff faithfully to perform the terms of the agreement. In denying the requested instruction an error was committed.
There are attached to the bill of exceptions a transcript of the entire testimony which was received and a copy of all the instructions that were given or refused, and of all other material matters occurring: at the trial. [230]*230A careful examination of the papers adverted to convinces us that in modifying the judgment by remitting the sum of $10, which was awarded to the plaintiff as damages on the second cause of action, the verdict ought otherwise to be sustained.
Mr. W. S. Wiley, for the motion.
Mr. W. E. A. Renner, contra.
The defendant as a witness testified that by reason of the plaintiff’s neglect for two weeks to rake 46 tons of the second crop of alfalfa, during which time the hay remained on the ground and exposed to several rainfalls, so that when raked most of the leaves fell from the stems, thereby leaving stalks only to be stacked, the defendant sustained damages to the extent of $2 a ton. As the jury reduced the amount of the plaintiff’s demand $109.15, it will be assumed they duly considered all the damages the defendant sustained.
Notwithstanding the commission of the errors complained of, the judgment as modified should be affirmed, and it is so ordered.
Modified and Affirmed.
Mr. Justice Bean and Mr. Justice Harris concur.
Mr. Justice Benson took no part in the consideration of this cause.
Motion overruled April 25, 1916.
On Motion to Tax Costs.
(156 Pac. 1034.)
In Banc.
Mr. Justice Burnett
delivered the opinion of the court.
5. On an appeal hy the defendant, the judgment of the Circuit Court in favor of the plaintiff was modified by requiring the remission of $10, the amount allowed by the jury on the plaintiff’s second cause of action; Mr. Chief Justice Moore writing the opinion. Both parties filed cost bills. Each claims costs and the expense of briefs and filing fee. The defendant asks for a trial fee and for printing an abstract of record in addition to the items charged on behalf of the plaintiff. The latter objects to his opponent’s cost bill substantially on the ground that it would be inequitable to allow costs for so slight a modification of the judgment, and finally that the defendant “is not entitled to costs as a matter of law, the Supreme Court under the constitutional provision of the State of Oregon having entered judgment in the above-entitled action for a sum that it deemed should have been entered in the lower court. ”
It is said in Section 2 of Article VII of the Constitution:
“The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amerdment, shall remain as at present constituted until otherwise provided by law.”
It is true that it is stated in the next section that, if upon the record there described “the Supreme Court shall be of opinion that it can determine what judgment should have been entered in the. court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the Supreme Court.” It must be remembered, however, that it is a judgment and not a decree which is to be entered under that [232]*232clause. The incidents of the former will therefore follow, and the question must be settled on the basis of a judgment as distinguished from a decree. Recalling, as we should, that the system is not changed, except as expressly stated in the Constitution, we must therefore have recourse to the statute for the solution of the issue. It is well settled that in actions at law costs must be allowed to one party or the other; for it is said in Section 564, L. O. L., that “costs are allowed of course to the defendant in the actions mentioned in Section 562, unless the plaintiff be entitled to costs therein.” Wherever they are allowed at law, they follow as a matter of course one way or the other. It is taught in Section 565, L. O. L., that costs in the Supreme Court on an appeal are allowed to the prevailing party. The issue in this court depends upon whether or not there was error in the judgment of the Circuit Court. The defendant-appellant here affirmed the proposition, while the plaintiff-respondent took the negative. The result of the decision here was that the defendant prevailed, having succeeded in establishing the existence of error. To accomplish this he was obliged to appeal and, having maintained his contention, is entitled to costs and disbursements. This is the ruling in Gardner v. Kinney, 60 Or. 292 (117 Pac. 971), a substantially parallel case.
The objections to the defendant’s cost bill must be overruled, and the costs taxed in his favor according to his cost bill.
Mr. Justice Benson took no part in the considerar tion of this cause.
Mb. Justice Eakin absent.