Parties:
Plaintiff: Clayton Coal Co. (seller)

Defendant: Cohen (buyer)

Facts:
On Aug 14th, 1926, plaintiff wrote a letter to defendant that they would enter into an agreement, providing that from Aug 14th, 1926 to Aug 14th, 1927, plaintiff supplied lump and slack coal to defendant and the price was fixed or depending on the market price. Defendant wrote down “Accepted” and signed and mailed the copied letter to plaintiff. But the plaintiff said they never received. After Aug 14th, 1926, defendants ordered both lump and slack coal from the plaintiff and that orders were filled at the prices mentioned in Aug 14th, 1926’s letter until on April 1927 when the defendants ordered slack coal and the plaintiff refused to fill the order.

Issue:
Whether the part performance can constitute a contract in this case?

Reasoning:
There was no formal acceptance of the contract.

It is unfair to plaintiff if the market price goes up, defendant will keep the contract as compulsory while the market price goes down, defendant said there is no binding contract, which leaves plaintiff under the binding of the contract while defendant has right to select. So there is no want of mutuality and that kind of part performance did not constitute it a valid contract between the parties.

Holding:
Judgment is in favor of plaintiff.