1. This being a suit to recover for services alleged to have been performed by the plaintiff in rehabilitating and improving farm lands belonging to the defendant, upon an alleged contract by which the defendant was to pay the plaintiff for such services, and there appearing from the evidence in support of the plaintiff's claim a promise to pay "four thousand to five thousand dollars," which is no definite sum, for indefinitely defined services to be performed by the plaintiff for the defendant, after the plaintiff has performed services of the general character of the services indefinitely described, but which performed services are definitely ascertainable, there can be no recovery of the sum of $4000 on the defendant's promise to pay such sum. The defendant, if liable, is liable only in quantum meruit for the services actually performed.

2. A statement in the charge to the jury of the contentions of the plaintiff, which does not contain all such contentions, is not error prejudicial to the defendant where the court in the same connection states that it is not stating all of the plaintiff's contentions and that the jury can look to the pleadings for the ascertainment of all of such contentions, where as in this case, the contentions were simple and not complicated.

DECIDED DECEMBER 3, 1940. REHEARING DENIED DECEMBER 17, 1940.

On July 27, 1938, G. C. Mashburn sued out an attachment against A. J. Mosteller, in a justice's court of Bartow County, returnable to the superior court thereof, and a levy was made on certain real estate of the defendant in Calhoun, Gordon County. A summons of garnishment was issued and served on the Bank of Adairsville, in Adairsville, Georgia. The plaintiff filed in the superior court a declaration in attachment, in which as amended it is alleged that the defendant is indebted to the plaintiff in the sum of $4000 with interest on a certain contract entered into between the parties on or about May 1, 1924; that the defendant owned a large tract of land in Bartow County consisting of cleared land and forests on which were located several corn, wheat, and sawmills, and other buildings, which were in a state of disrepair; that the cleared lands were in an unproductive state; that the property presented "an unattractive appearance to prospective purchasers;" that the defendant desired to sell these lands: that the defendant at the time was sixty-five years of age, and lived in Florida, and was dependent on others to care for and look after these lands; that the defendant was desirous of procuring some person to rent the lands who would improve the mills and houses thereon, as well as the cultivated lands and forests; that the defendant approached the plaintiff with the request that the plaintiff take charge of and rent these lands, and pay to the defendant "the third and fourth thereof, and in addition protect and improve" the property and assist in its sale; that the defendant told the plaintiff that when the plantation with such improvements was sold he would pay to the plaintiff four to five thousand dollars for such improvement and protection of the property; that the plaintiff agreed to do this and for sixteen years has abided on these lands and carried out this agreement with the approval of the defendant; that on December 20, 1938, the defendant sold the entire plantation "so that the entire contract became executed and the amount due thereunder became payable;" that the plaintiff has demanded such sum of the defendant which he has refused to pay, and that the plaintiff sued out the attachment in the justice's court as stated above. The required notice of attachment was given and served on the defendant.

The defendant answered and denied that he was liable to the plaintiff, and denied the existence of any contract between the parties. He admitted that the plaintiff had rented the lands sixteen years ago and had lived thereon since then and made some improvements, and further admitted that he had sold the plantation and that the plaintiff had demanded of him the sum sued for which he had refused to pay.

The case came on for trial. The plaintiff testified in part as follows: "I talked to Mr. Mosteller about his plans and my plans for the future; we talked together about them. . . He said the farm was in a run-down condition, and let's go in together and work together and improve this land, and get it in condition where it could be sold, and that I was to have as pay for my part four or five thousand dollars to compensate me for my labor. . . He discussed with me at that time what the farm should sell for. . . I was to help sell the farm, and naturally the price was discussed, and he gave me a price of $50,000 at which to sell the farm. He had sold it to Tomlinson for $50,000. That was the figure he was wanting for it at that time. . . I stayed there about sixteen years after I entered into this contract with this defendant. . . He told me what I would get for my efforts in improving it . . and when it was sold I would get four to five thousand dollars out of the sale. . . It was understood under the contract that it carried on until the farm was sold. . . I didn't think it would take sixteen years for the improvement of this farm. . . He wanted us to have four or five thousand dollars out of this farm to buy us a farm with. . . He said he wanted me to have four or five thousand dollars. We was to do this improvement to earn this money. . . Under the contract as to what I would have to do to earn this four or five thousand dollars, I was to improve the farm; I was to shape up the farm there. . . I was to get cover crops planted, get the fields cleared, and get it in a nice cultivating condition. In other words, I was to do what I have already alleged in my petition. . . I was to do this same thing. Mr. Mosteller said he wanted me to have enough money to buy me a comfortable home, not a large home, an ordinary farm of 100 to 150 acres. . . Mr. Mosteller didn't stipulate what I was to do. . . He just wanted to give me four or five thousand dollars to build me a home, and said nothing about a definite amount; . . it was just left to his discretion. . . There was nothing done or said to determine which it was to be, four or five thousand dollars. There was no stipulated time that I was to serve up there, just until we could get this farm on the market. . . He agreed to pay me four or five thousand dollars for the services I have alleged in my petition here regardless of the length of time it took me to perform my part of that contract . . We didn't consider the time in making the proposal. . . I couldn't have gotten the farm in shape by the next day. I was to put the farm in shape, so that it would show up well to a purchaser. . . There was no definite period of years, just until we could find a purchaser. . . I was to prepare those fields and get them in fine condition for a purchaser, and he was to give me four or five thousand dollars for my services. If the property had never been sold . . probably I wouldn't have gotten anything. . . My intention was to sell the farm. He left me to get a purchaser for the farm and I took that chance. . . When Mr. Mosteller sold the place, he got $12,000 for it. . . According to the allegations in my petition, as to whether I was getting more than one third of the selling price, or I was to get one third of the sale price of that property, there wasn't anything said about that. I did testify that he gave me $50,000 as the price to sell it, and he sold it for another price. Supposing that property sold for $4000, as to whether Mr. Mosteller owed me the full $4000, yes, according to the contract, he would. I was making a price of $50,000 for the sale of that property, and he agreed to try to sell it for $50,000, and went to work to build it up. He did not agree to pay me any commission for my services in making the sale. . . We was going to work together; we were to make the farm look better and enticing to purchasers. . . I was only to help take care of this place. I was not to take the initiative to keep up the machinery and the buildings there; I was to help to keep them up and be general supervisor, but I was not to take the burden of keeping those up. . . I made my contract with him about May 1st. . . As to whether or not I was to maintain that place in a good condition, I was to run it as I saw fit; I was to handle it to the best of my ability and run it as best as I could. . . I was to have four or five thousand dollars out of this property when it was sold. . . It is true that I said in this contract with Mr. Mosteller that we were to work together, to improve that place. As to what work I was to do and what work he was to do, his part was to look after the buildings, get them in shape so they would look nice, and my part was to look after those fields. . . As to whether or not Mr. Mosteller and I were to work together and Mr. Mosteller was to take care of the buildings and machinery and I was to take care of the fields, I supervised the whole thing. . . I was to supervise the repairing of the roofs on the buildings; I was to supervise anything that needed attention. . . I expected pay for every bit of work that I done there; I am here contending for that now; to be paid when the farm was sold under my contract. . . Mr. Mosteller never did express any dissatisfaction with the way I was carrying out the work. . . We discussed things and we didn't always agree as to how things should be done on the farm, but that was settled when the contract was made that I was to run the farm, and I was to run it to the best of my ability."

There was evidence in behalf of the plaintiff tending to show that he had done various things towards improving the lands referred to, including the planting of cover crops, terracing the land and preventing soil erosion, as well as repairing certain buildings on the land and looking after the forests and timber. There was evidence tending to show that the land was in better condition and more productive at the time it was sold than at the time of the alleged agreement in 1924.

The defendant testified that he rented the premises to the plaintiff under a straight contract of rental, and that the things done by the plaintiff on the premises were either done in the performance of his contract of rental or were paid for by the defendant. The defendant denied the existence of the contract sued on and testified to by the plaintiff. The jury returned a verdict in favor of the plaintiff for $4000 with interest from the date of the sale by the defendant of the plantation. The defendant moved for a new trial on the general grounds, and by amendment added certain special grounds. The judge overruled the motion and the defendant excepted.

STEPHENS, P. J. (After stating the foregoing facts.)

It is one of the essential elements of a contract that the undertaking and the promises expressed therein must possess such degree of definiteness and certainty as to be capable of ascertainment. This may be determined, not only by the express terms of the contract, but by the circumstances under which the contract is made, and what may at the time have been in the minds of the parties and so understood by them. Where there is a contract for the performance of services by one party, in consideration of the payment of money therefor by the other party, the nature and character of the services to be performed and the amount to be paid therefor must be of such a character that it can be ascertained what services are to be performed, and what sum of money is to be paid therefor. In the alleged contract the plaintiff, according to the evidence tending to establish the contract, was generally, in addition to his duties and obligations as tenant of the defendant, to rehabilitate the land by making it more productive and to look after the buildings on the land, care for the forests, and assist the defendant in effecting a sale of the property, in consideration of the payment by the defendant to the plaintiff of from "four thousand to five thousand dollars" when the property should be sold. There was no specification with any degree of definiteness or certainty as to any specific things to be done by the plaintiff in rehabilitating the property, and looking after the buildings and forests, etc. Nor was there any definite time limit in which these services were to be performed. There was no certainty in the promise of the defendant to pay for the services to be rendered by the plaintiff. The promise was to pay from four thousand to five thousand dollars, and this was only upon the contingency that the property was sold.

If this were a bilateral contract, that is, a contract under which the plaintiff agreed to perform the services which he contended he was to perform in consideration of a promise of the defendant to pay therefor, and a promise on the part of the defendant to pay the plaintiff, in consideration of the plaintiff's promise to perform, the contract would hardly be enforceable. If the plaintiff had refused to perform and the defendant had sued for the breach, or if the plaintiff had undertaken to perform and the defendant had contended that the performance was not in accordance with the terms of the contract, and the defendant had sued the plaintiff for a breach thereof, he could not have established a breach because it would have been impossible for him to establish with any degree of definiteness or certainty just what services the plaintiff had been called on to perform under the contract. If the defendant could not have held the plaintiff to a performance of the contract as a bilateral obligation, then certainly the plaintiff could not have held the defendant.

If the contract, however, was not bilateral in character, i. e., if the plaintiff had not made any promise to perform but had actually performed, as he contends, those things the performance by him of which were to be a consideration for the defendant's promise to pay from four to five thousand dollars, there could possibly then be established with some degree of certainty and definiteness the things which the plaintiff had actually performed. The performance by the plaintiff would then have amounted to no more than an acceptance by him of the defendant's promise to pay. We would then have a unilateral contract with execution or performance by the plaintiff and a promise to pay by the defendant. As to the defendant's promise, which itself was indefinite, it was not to pay a definite sum. It was made before the plaintiff had performed any services, and was not made in consideration of the performance by the plaintiff of any definite services to be performed by him, and which were at the time capable of definite ascertainment. The defendant's promise to pay, if it could be construed as a definite promise, can not be held to be a promise to pay for the services actually performed afterwards by the plaintiff, although these services can be ascertained with definiteness and certainty. Therefore the performance by the plaintiff of the services actually performed, in so far as they are definitely ascertained, can not be considered as performed in consideration of the original promise made by the defendant to pay any sum of money, certainly not to pay an indefinite sum, as from four to five thousand dollars. If the plaintiff performed definite and ascertainable services of the general character of those originally described and contemplated by the parties and the defendant had expressed a willingness to pay therefor, there would arise a unilateral contract by which, upon performance by the plaintiff of the services which he did perform, he would be entitled to recover of the defendant the reasonable value thereof. The plaintiff is not as a matter of law entitled to recover for the services performed the sum of $4000.

It appears from the evidence that when the alleged contract was made, as alleged and contended by Mashburn, Mosteller was to pay the plaintiff $4000 to $5000 if the plaintiff rehabilitated the premises, performed other services, and assisted in the sale of the property. Mosteller had recently sold the property to another person (Tomlinson) for $50,000, but had taken the property back. The jury could infer from the evidence that under the alleged agreement it was in the minds of the parties that the place would be improved in appearance to the extent that it would likely sell for $50,000, and that when Mosteller made the offer to pay Mashburn upon a resale of the property from $4000 to $5000 it was in the contemplation of the parties that the property would sell for something like $50,000, and that in such event the services to be performed by Mashburn would be worth in quantum meruit $4000 to $5000. There was no promise to pay a definite sum. Therefore it can be reasonably inferred from all the facts and circumstances that it was in the minds of the parties that if the property would sell for something like $50,000 the quantum meruit value of the services of Mashburn would be estimated somewhere between $4000 and $5000. Taking into consideration all the facts and circumstances in the case it can not be held as a matter of law that Mosteller was under contract to pay the definite sum of $4000 for the services which the jury might find had been rendered by the plaintiff. The fact that Mosteller never at any time promised to pay any definite sum for the performance of any services by Mashburn is itself sufficient to defeat any right in Mashburn to recover on any promise by Mosteller, as alleged by the plaintiff in his petition and as charged by the court, the sum of $4000.

The above is based on the evidence adduced by Mashburn in support of the allegations of his petition relatively to his alleged contract. Mosteller denied the contract and a promise to pay. The court erred in instructing the jury that if they found that the parties had entered into a contract as alleged by the plaintiff and that the plaintiff had performed the contract as agreed by him and was entitled to recover, he would be entitled to recover $4000. The jury having rendered a verdict for $4000 with interest, this error of course demands the grant of a new trial.

The exceptions to the charge taken in several grounds of the amended motion to the effect that the court, in stating the contentions of the plaintiff, failed to state all the contentions, is without merit, since the court in charging the jury the contentions of the plaintiff specifically stated that he was not charging all his contentions, and that the jury could look to the pleadings to ascertain the contentions of the plaintiff in full, where, as in this case, the contentions were simple and not complicated. It follows that the court erred in overruling the motion for new trial.

Judgment reversed. Sutton and Felton, JJ., concur.