The opinion of the court was delivered by
Smith, J. :
It does.not appear from the petition that there was any contract or agreement upon tl^e part of the plaintiffs below with the railway company by which they bound themselves to ship the corn over the line of the Missouri, Kansas & Texas railway. While it is alleged that the agent, Donohue, promised and contracted on behalf of the railway company to transport this corn for the plaintiffs within a given time to Laredo, Tex., and that plaintiffs made contracts with the persons in Mexico upon the strength of the promise of Donohue, yet nowhere is it alleged that the plaintiffs agreed to furnish this corn to the Missouri, Kansas & Texas Railway Company for shipment. There are allegations in the petition to the effect that the plaintiffs below had various offers from persons in Mexico to purchase a certain quantity or kind of corn at a certain price per hundred pounds, delivered at Laredo, which place is on the border between the state of Texas and the republic of Mexico ; that these propositions as they were received by the plaintiffs below were in each instance shown to Donohue, who, it is alleged, was the commercial agent of the company, with authority to contract for it and especially to make the contract with the plaintiffs for the transportation of the corn; that, upon receiving from Donohue assurances that the railway company would receive and ship the corn if the plaintiffs made [431]*431the contracts with the persons in Mexico, they closed the contracts with such persons and bound themselves to deliver at Laredo the amount of corn called for in each of the several causes of action, which represent as many contracts with persons in Mexico.
It is not contended by counsel for defendant in error that there is any express allegation in the petition to the effect that W. H. Harris & Co. bound themselves to ship the corn over the railway of defendant in error, but it is claimed that this is a fair inference to be drawn from the language used. While the allegations of the petition, when attacked by an objection to the introduction of evidence under it, will be construed liberally and will be held good unless there is a total omission to allege some material fact which is essential to plaintiffs’ cause of action, yet it seems to us that an allegation of the important element of mutuality, which is the basis of all valid contracts, is wholly absent from the petition. It is probable that the pleader considered that he was pleading an undertaking on the part of the plaintiffs below, by the terms of the contract with Donohue, to ship the corn over the defendant’s railway, but a careful reading of the petition convinces us that he wholly failed so to do. In the late case of Woolsey v. Ryan, 59 Kan. 601, 54 Pac. 664, this court, speaking through Chief Justice Doster, said :
“In all probability, the instrument wTas supposed to be binding upon both sides when it was signed, but we can give effect to the intention of the parties only through' the words they employ. If they do not express themselves in intelligible language, the law cannot afford them relief. For illustrations of the rule which requires mutuality of engagement between parties to contracts, see Davie v. Mining Co., 93 Mich. 491, 53 N. W. 625; Vogel v. Pekoc, 157 Ill. 339, 42 N. [432]*432E. 386; Campbell v. Lambert, 36 La. Ann. 35; Turnpike v. Coy, 13 Ohio St. 84; Stensgaard v. Smith, 43 Minn. 31, 44 N. W. 669.”
The defendant in error contends that the petition was sufficient in the respect mentioned, it having alleged offers from persons in Mexico to buy corn from W. H. Harris & Co., which offers were laid before Donohue, with the amount, price, terms and all made known to him, and thereon he was requested to name a through'rate from Kansas City to Laredo within the time fixed; that he offered, if plaintiffs would make the sale, to transport the corn for 25 cents per 100 pounds; that plaintiffs notified him that they would close the sale and ship the corn within the time ; “that defendant thereupon, through its agent, orally contracted and agreed with plaintiffs to transport said quantity of grain promptly and as rapidly as tendered within the time so specified to said Laredo, Tex., at the rate of 25 cents per 100 pounds” ; that plaintiffs thereupon closed a contract of sale.
The agreement places an obligation upon one of the parties to the contract only — the railway company. If W. H. Harris & Co. had refused to ship any corn over the road of the defendant after making the various oral contracts with Donahoe, and the railway company had sued them for á breach, could it be said that proof only of the facts set out in the petition would render W. H. Harris & Co. liable to the railway in damages for a failure to ship over the line of the plaintiff in error? From all that can be gathered from the pleading, plaintiffs below were at liberty to ship this corn over any other route from Kansas City to Laredo, and it appears from the evidence that there were two others. Nor can the doctrine of “express aider ” cure the infirmities of the petition. The [433]*433answer, after alleging an impenetrable blockade and impossibility of sending more corn through, says: “This defendant was compelled to decline several shipments of corn which were tendered by plaintiffs, which refusal was made nécessary,” etc. It is contended that this language in the answer remedies the defective allegations of the petition by invoking the doctrine of aider by answer. The language above quoted.falls far short of an admission that W. H. Harris & Co. were obligated to make all shipments of corn mentioned iii the petition over the defendant’s railway line. The fact that they did ship a large quantity of corn over defendant’s road, and that defendant was compelled afterward to decline several shipments of corn which were tendered by ~W. H. Harris & Co., does not imply that they were bound by contract to make all the .shipments over the defendant’s road.
The principle that mutualityis an essential element to the validity of contracts is well settled.
“It is a general principle of law of contracts, but not without exception, that an agreement entered into between parties competent to contract', in, order to be binding, must be mutual; and this is especially so when the consideration consists- of mutual promises. In such cases, if it appears that the one party never was bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality.” (Wilkinson v. Heavenrich, 58 Mich. 574, 26 N. W. 139.)
In Tucker v. Wood, 12 Johns. 190, it is said: “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 at the sanie time.” In Chitty on Contracts, 297, this language is used : “ The agreement, as before observed, [434]*434must in general be obligatory upon both parties. There are several cases satisfactorily establishing that if the one party never was bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality.” It is unnecessary to multiply authorities upon this well-established doctrine.
The defendant in error calls our attention to the evidence in the cause, which he claims shows a plain contract of agreement on the part of W. H.
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The opinion of the court was delivered by
Smith, J. :
It does.not appear from the petition that there was any contract or agreement upon tl^e part of the plaintiffs below with the railway company by which they bound themselves to ship the corn over the line of the Missouri, Kansas & Texas railway. While it is alleged that the agent, Donohue, promised and contracted on behalf of the railway company to transport this corn for the plaintiffs within a given time to Laredo, Tex., and that plaintiffs made contracts with the persons in Mexico upon the strength of the promise of Donohue, yet nowhere is it alleged that the plaintiffs agreed to furnish this corn to the Missouri, Kansas & Texas Railway Company for shipment. There are allegations in the petition to the effect that the plaintiffs below had various offers from persons in Mexico to purchase a certain quantity or kind of corn at a certain price per hundred pounds, delivered at Laredo, which place is on the border between the state of Texas and the republic of Mexico ; that these propositions as they were received by the plaintiffs below were in each instance shown to Donohue, who, it is alleged, was the commercial agent of the company, with authority to contract for it and especially to make the contract with the plaintiffs for the transportation of the corn; that, upon receiving from Donohue assurances that the railway company would receive and ship the corn if the plaintiffs made [431]*431the contracts with the persons in Mexico, they closed the contracts with such persons and bound themselves to deliver at Laredo the amount of corn called for in each of the several causes of action, which represent as many contracts with persons in Mexico.
It is not contended by counsel for defendant in error that there is any express allegation in the petition to the effect that W. H. Harris & Co. bound themselves to ship the corn over the railway of defendant in error, but it is claimed that this is a fair inference to be drawn from the language used. While the allegations of the petition, when attacked by an objection to the introduction of evidence under it, will be construed liberally and will be held good unless there is a total omission to allege some material fact which is essential to plaintiffs’ cause of action, yet it seems to us that an allegation of the important element of mutuality, which is the basis of all valid contracts, is wholly absent from the petition. It is probable that the pleader considered that he was pleading an undertaking on the part of the plaintiffs below, by the terms of the contract with Donohue, to ship the corn over the defendant’s railway, but a careful reading of the petition convinces us that he wholly failed so to do. In the late case of Woolsey v. Ryan, 59 Kan. 601, 54 Pac. 664, this court, speaking through Chief Justice Doster, said :
“In all probability, the instrument wTas supposed to be binding upon both sides when it was signed, but we can give effect to the intention of the parties only through' the words they employ. If they do not express themselves in intelligible language, the law cannot afford them relief. For illustrations of the rule which requires mutuality of engagement between parties to contracts, see Davie v. Mining Co., 93 Mich. 491, 53 N. W. 625; Vogel v. Pekoc, 157 Ill. 339, 42 N. [432]*432E. 386; Campbell v. Lambert, 36 La. Ann. 35; Turnpike v. Coy, 13 Ohio St. 84; Stensgaard v. Smith, 43 Minn. 31, 44 N. W. 669.”
The defendant in error contends that the petition was sufficient in the respect mentioned, it having alleged offers from persons in Mexico to buy corn from W. H. Harris & Co., which offers were laid before Donohue, with the amount, price, terms and all made known to him, and thereon he was requested to name a through'rate from Kansas City to Laredo within the time fixed; that he offered, if plaintiffs would make the sale, to transport the corn for 25 cents per 100 pounds; that plaintiffs notified him that they would close the sale and ship the corn within the time ; “that defendant thereupon, through its agent, orally contracted and agreed with plaintiffs to transport said quantity of grain promptly and as rapidly as tendered within the time so specified to said Laredo, Tex., at the rate of 25 cents per 100 pounds” ; that plaintiffs thereupon closed a contract of sale.
The agreement places an obligation upon one of the parties to the contract only — the railway company. If W. H. Harris & Co. had refused to ship any corn over the road of the defendant after making the various oral contracts with Donahoe, and the railway company had sued them for á breach, could it be said that proof only of the facts set out in the petition would render W. H. Harris & Co. liable to the railway in damages for a failure to ship over the line of the plaintiff in error? From all that can be gathered from the pleading, plaintiffs below were at liberty to ship this corn over any other route from Kansas City to Laredo, and it appears from the evidence that there were two others. Nor can the doctrine of “express aider ” cure the infirmities of the petition. The [433]*433answer, after alleging an impenetrable blockade and impossibility of sending more corn through, says: “This defendant was compelled to decline several shipments of corn which were tendered by plaintiffs, which refusal was made nécessary,” etc. It is contended that this language in the answer remedies the defective allegations of the petition by invoking the doctrine of aider by answer. The language above quoted.falls far short of an admission that W. H. Harris & Co. were obligated to make all shipments of corn mentioned iii the petition over the defendant’s railway line. The fact that they did ship a large quantity of corn over defendant’s road, and that defendant was compelled afterward to decline several shipments of corn which were tendered by ~W. H. Harris & Co., does not imply that they were bound by contract to make all the .shipments over the defendant’s road.
The principle that mutualityis an essential element to the validity of contracts is well settled.
“It is a general principle of law of contracts, but not without exception, that an agreement entered into between parties competent to contract', in, order to be binding, must be mutual; and this is especially so when the consideration consists- of mutual promises. In such cases, if it appears that the one party never was bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality.” (Wilkinson v. Heavenrich, 58 Mich. 574, 26 N. W. 139.)
In Tucker v. Wood, 12 Johns. 190, it is said: “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 at the sanie time.” In Chitty on Contracts, 297, this language is used : “ The agreement, as before observed, [434]*434must in general be obligatory upon both parties. There are several cases satisfactorily establishing that if the one party never was bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality.” It is unnecessary to multiply authorities upon this well-established doctrine.
The defendant in error calls our attention to the evidence in the cause, which he claims shows a plain contract of agreement on the part of W. H. Harris & Co. to ship over the line of the Missouri, Kansas & Texas Railway Company. This evidence is contained in the affidavit made by Donohue before the action was brought, and was used in his cross-examination for the purpose of contradiction and impeachment. A large portion of this affidavit was of doubtful admissibility, and that part of it relating to the agreement of plaintiffs below to ship the grain over the line of the defendant railway within the time specified was not ill contradiction of any statements made by the witness in direct examination. Whether this testimony was admissible or not becomes immaterial, however, in our view of the failure of the petition to allege such mutuality of contract as justified a recovery under it.
A number of exhibits written in Spanish were offered in evidence, containing orders for corn from persons and firms in Mexico named in the petition, addressed to the plaintiffs below and material to their case. These documents were translated by one Enrique Guerra, who made affidavit to each that he was a competent translator, could read and write both Spanish and English, and that he had translated the documents accurately and faithfully into the English language. Mr. Bagley, a witness for plaintiffs below, testified that he could converse in Spanish, that he had known [435]*435Señor Guerra five years, and that he could speak and write both English and Spanish, and had done so with the witnéss. The statute governing the admissibility of such evidence reads : “ Whenever any written evidence in a cause shall be in language other than the English, a written translation thereof, in the English language, made by a competent translator, and verified by his affidavit, may be read in evidence instead of the original, if such original be competent evidence.” (Gen. Stat. 1889, ¶ 4477; Gen. Stat. 1897, ch. 97, § 21.) We do not think it is competent for the translator to establish his competency and qualifications for the work he has undertaken by his own affidavit. In making the translation he acts in the capacity of an expert, and his competency as such should be open to inquiry by the party against whom the translated documents are to be used as evidence. A cross-examination of the witness Guerra by the defendant below would have tested his ability as a translator. Nor was it competent for the witness Bagley to give his opinion as to the qualifications of Guerra. The statute contemplates that a witness acting as a translator should not prove his competency by his own ex parte affidavit, but that he should be brought before the court and examined as a witness or his deposition taken, in either case affording to the opposite party the opportunity of cross-examination.
It is unnecessary to consider other grounds of error assigned. We will say, however, in view of another trial of this cause, that the authority óf the agent Donohue to make the contracts was in our opinion sufficiently established. The instructions given hint by Mr. J. Waldo, the general traffic manager of they railway company, to the effect that he might do whatever was necessary to get the south-bound business [436]*436from W. H. Harris & Co., was sufficient to authorize Donohue to make contracts. The claim that the contracts of shipment were in violation of the interstate commerce law of the United States cannot be considered. Such defense, to be available, must be pleaded. (Ray, Freight Carriers, 707; Association v. Delano, 108 Mo. 217, 18 S. W. 1101.) Nor was there any evidence offered by the defendant below to the effect that W-. H. Harris & Co. knew that a higher freight-rate was charged for a shorter distance than Kansas City to.Laredo from points in Kansas.
The judgment of the court below will be reversed, arid a new trial ordered.