Decision at 15). But that was a minor procedure done with Respondent Jones' permission. Respondent Jones testified (Tr. 82–83): A. See, I didn't even -- I had this horse flat shod, pleasure horses, you may be familiar with this. Q. Now you say, now you tell me what you mean by that. A. A pleasure horse wears a flat shoe just like a regular Quarter horse only they can be thicker, up to a half inch and an inch, and a half wide is the maximum. in. Q. All right. A. Plantation shoe. That's what I show in. That's what I trail ride Q. All right. A. But the built-up horses are allowed a neoprene pad. There's people here that can tell you a whole lot more about that than I can. After he carried the horse home, he had the intention of making a built-up horse out of him. And I said, "Well, try it and see, you know, it doesn't matter to me cause I don't want anybody to get hurt on him," and that lady over there in the pink blouse with flowers on her shirt is bad about taking trips off in the hills by herself on this horse, and he had a bad disposition at times. So we went Q. Just a moment. Are you telling me that prior to your delivery of this animal to the Hampton's ranch or farm that it had a flat shoe on it? A. Yes, sir. Q. And then what happened after that? A. They had the built-ups put on it, and I told him -- I said, "If you 53 Agric. Dec. 1357 want to put them on, it's up to you. I will not pay for it." Q. All right. A. Otherwise that's what turns a pleasure horse into a Big Lick horse. After Respondent Jones took his horse home on the day of the show, he changed the shoes back to their original status almost immediately. Respondent Jones testified (Tr. 87-88): Q. How long did you leave the horse in the built-up pads? A. I took him down almost immediately after he came home. Q. And you say you "took him down," tell me what that means. - A. That's taking the built-up see, a built-up shoe, I'm not sure the dimensions can be probably as high as three or four inches at the heel built-up between the steel shoe and their actual foot. It's an artificial foot. Q. All right. A. And they can -- that accentuates their gait and gives a show gait, and we trail ride at home. Or we go on trail rides, and that doesn't work for me. Now, it works for some people, but I want horse if I get ready to climb a hill or whatever we climb hills. We cross creeks, branches not some of us do. You know it's first -- my horses are my pleasure, and the show is the icing on the cake. Q. All right. Would you have ridden this animal on trails if it were equipped with the built-up pads you've described? A. I probably wouldn't. Q. You say you would not. A. Not the trails I ride. No, sir, I wouldn't. Some people do but I wouldn't. As far as ownership goes, the use of different shoes on a show horse no more determines ownership than changing racing tires on a race car. The change is not permanent, does not alter the nature of the res, and is easily reversed--as actually happened herein. Respondent Jones' action in permitting the Hamptons to alter the horse's shoes temporarily, so that the Hamptons could "try it and see" (Tr. 83), is not at all inconsistent with the fact that the preliminary negotiations never reached the point of a binding agreement to sell or trade. The following discussion from 1 Arthur L. Corbin, Corbin on Contracts § 22, at 62-64, § 29, at 82–94 (1963) (footnotes omitted), is relevant here: § 22. Preliminary Negotiation A bargaining transaction usually begins with what may be described as preliminary negotiation. This may include mere general discussion of a very indefinite character. There may be requests for estimates or bids. There may be the puffing of wares by advertising their qualities and stating their prices. This may be done in newspapers or by handbills or in magnificently illustrated catalogs. Much of this preliminary negotiation may be totally inoperative to affect the legal relations of the parties involved. Its purpose may be merely to acquaint another person with a certain fact and to excite in him a bargaining desire; but inoperative preliminary negotiation may or may not lead to the making of a legally operative offer. The term "preliminary negotiation," however, may be used to include all those communications and other events in a bargaining transaction that are antecedent to acceptance, that is, antecedent to the completion of the contract. In this sense, every offer that is made is a part of the negotiation that is preliminary to the making of a contract. There may, indeed, be more than one offer. In the preliminary haggling process, there are frequently offers and counter-offers, each one of which has a certain legal operation, but none of which is transformed into a contract, for lack of acceptance on the part of the 53 Agric. Dec. 1357 offeree. In determining whether or not a bargaining transaction actually results in the making of a contract, it is frequently necessary to consider all of the preliminary negotiations, all of the offers and counter-offers, interpreting the various expressions of the parties, in order to form a judgment as to whether they ever finally expressed themselves as in agreement on completed and definite terms. § 29. Partial Agreements-"Contract to Make a Contract" Communications that include mutual expressions of agreement may fail to consummate a contract for the reason that they are not complete, some essential term not having been included. Frequently agreements are arrived at piecemeal, different terms and items being discussed and agreed upon separately. As long as the parties know that there is an essential term not yet agreed on, there is no contract; the preliminary agreements on specific items are mere preliminary negotiation building up the terms of the final offer that may or may not be made. Even though one of the parties may believe that the negotiation has been concluded, all items agreed upon, and the contract closed, there is still no contract unless he is reasonable in his belief and the other party ought to have known that he would so believe. The same result exists in cases where a complete and operative offer is made, but is not unconditionally accepted. The reply may be a partial or a conditional acceptance, in which case certain terms of the offer are agreed upon while others are not. The parties may proceed with their negotiations as to these others, without any new and distinct reference to the terms already assented to. There is no contract until agreement is reached on all terms, the preliminary and partial agreements being expressly or impliedly incorporated into the final offer and acceptance. Further illustrations are to be found in the cases of a so-called contract to make a contract. It is quite possible for parties to make an enforceable contract binding them to prepare and execute a subsequent documentary agreement. In order that such may be the effect, it is necessary that agreement shall have been expressed on all essential terms that are to be incorporated in the document. That document is understood to be a mere memorial of the agreement already reached. If the document or contract that the parties agree to make is to contain any material term that is not already agreed on, no contract has yet been made; and the so-called "contract to make a contract" is not a contract at all. We must not jump too readily to the conclusion that a contract has not been made from the fact of apparent incompleteness. People do business in a very informal fashion, using abbreviated and elliptical language. A transaction is complete when the parties mean it to be complete. It is a mere matter of interpretation of their expressions to each other, a question of fact. An expression is no less effective that it is found by the method of implication. The parties may not give verbal expression to such vitally important matters as price, place and time of delivery, time of payment, amount of goods, and yet they may actually have agreed upon them. This may be shown by their antecedent expressions, their past action and custom, and other circumstances. Even though certain matters are expressly left to be agreed upon in the future, they may not be regarded by the parties as essential to their present agreement. Furthermore, the terms left for future settlement may be within definite and prescribed limits. The exact price may be left for future negotiation within a specified maximum and a specified minimum. In such a case it may be intended that the buyer shall have a binding option to buy at the maximum, or the seller shall have one to sell at the stated minimum, or both may have such options. An agreement to grant a license in a "standard form" to be thereafter adopted by the patentee granting it becomes enforceable as soon as the patentee adopts such a form. The agreement may have been such that the patentee promised that he would prepare such a form, so that the parties were bound by a bilateral contract prior to its preparation. There may be a valid contract even though one of the parties must still submit specifications as to assortment of sizes or qualities. The court will be more ready to find that the apparently incomplete |