Opinion
40986.
DECIDED JANUARY 6, 1965. REHEARING DENIED JANUARY 25, 1965.
Action on contract. Fulton Civil Court. Before Judge Williams.
George B. Finch, A. Tate Conyers, for plaintiff in error.
Hansell, Post, Brandon Dorsey, Charles E. Watkins, Jr., contra.
1. Mutuality of a contract is measured as of the time for performance, not the date of execution; and a contract, the terms of which are certain and complete, is not deprived of mutuality because it is subject to a condition precedent.
2. An exception that a charge is erroneous and unsound as an abstract principle of law raises only the question as to whether the principle of law embraced in such charge is, standing alone, a sound pronouncement of law; and unless the criticized charge is incorrect on its face, such assignment of error is without merit, as the court will not determine whether such charge was adjusted to the pleadings and evidence or was otherwise proper.
3. It is not error to fail to charge without request principles of law which are merely elaborative and explanatory of the charge given.
DECIDED JANUARY 6, 1965 — REHEARING DENIED JANUARY 25, 1965.
This was a suit brought in two counts to recover damages against the defendant for breach of contract, count 1 being predicated upon an express contract and count 2 being based on quantum meruit.
The plaintiff's petition alleged that on March 8, 1961, the United States Government, through the General Services Administration, issued a public invitation to bid on the proposed leasing of a large building to the government to be used by the Internal Revenue Service as an automatic data processing service center. The government invitation to bid required that the building to be leased be constructed on government property in Chamblee, Georgia, title to the building site to be conveyed by the government to the successful bidder for $75,000, and the bids to the government were to be submitted on the basis of a firm term of ten years with two renewal options vested in the government each for a firm term of five years, or a firm term of twenty years. The invitation to bid contained the government's minimum specifications and general requirements for the building.
The petition further alleged that the defendant was interested in entering a bid to the government for the leasing of the proposed facility and that he therefore secured the services of an architect to prepare drawings from the government specifications and to contact four construction companies, including the plaintiff, and request that they prepare bids, to be submitted to the defendant, from the government plans and specifications and the architect's drawings. The petition alleged that it was agreed that the plaintiff and the other construction companies which accepted the defendant's invitation to prepare bids were to submit sealed bids which were to be opened in the architect's office on April 14, 1961, in the presence of all parties, and that the low bidder was to construct the building according to the government specifications and the drawings for the price bid, should the defendant be the successful bidder to the government. It was alleged that on April 14, 1961, the representatives of the construction companies, the defendant and the architect met for the opening of the bids and that just prior to the opening of the bids, it was orally agreed again between the bidders and the defendant that the low bidder and the defendant should be bound at that time, subject to the condition that the defendant be awarded the government contract, the low bidder to the defendant to construct the building according to the government plans and specifications and the architect's drawings for and in consideration of the payment of the amount of the low bid. The petition alleged that the bids were opened and that the plaintiff was the low bidder with a bid of $1,815,459. It was alleged that after the opening of the bids, the plaintiff wrote a letter to the defendant confirming the verbal agreement and that the defendant signed a copy of the letter and returned it to the plaintiff.
The petition further alleged that the plaintiff's bid was used by the defendant in preparing his bid to the government, and that the defendant was the low bidder to the General Services Administration with a bid of $208,985 rental per year on a twenty-year lease on the building to be constructed according to the specifications, and that the defendant was awarded the government contract which was executed on June 1, 1961. On the following day, however, according to the allegations of the petition, the defendant breached his contract with the plaintiff by entering into an agreement with another construction company for the construction of the building.
The plaintiff alleged that it was ready, willing and able to construct the building for the defendant for $1,815,459 as originally bid and in accordance with the terms of the original agreement, and damages were sought in count 1 in the amount of $139, 105, the alleged difference between the contract price and the plaintiff's total cost of performing the contract. The plaintiff in count 2 sought to recover the sum of $2,050 which was alleged to be the costs expended by it in preparing the bid submitted to the defendant.
The defendant filed its general and special demurrers to the petition and an answer and cross action, and after the overruling of the demurrers to the petition, the case proceeded to trial. The jury returned a verdict for the plaintiff on count 1 of the petition in the amount of $87,105. The defendant filed a motion for judgment notwithstanding the verdict and in the alternative a motion for new trial, and the exception is to the denial of these motions and to the antecedent order overruling the defendant's demurrers to the petition. The defendant also assigns error on an order of court sustaining the plaintiff's motion to dismiss an amendment to his answer.
The only assignments of error in the bill of exceptions which will be considered by the court are those which have been argued by the defendant (the plaintiff in error in this court). These are the overruling of the general demurrer to count 1 of the petition, the denial of the motion for judgment notwithstanding the verdict, and the denial of the motion for new trial on the general and two of the special grounds. The remaining assignments of error are considered abandoned. A. F. King Son v. Simmons, 107 Ga. App. 628 ( 131 S.E.2d 214); Georgia Motor Supply Co. v. Bailey, 105 Ga. App. 268 ( 124 S.E.2d 298).
1. The defendant contends that the trial court erred in overruling his general demurrer to count 1 of the petition and in denying his motion for judgment notwithstanding the verdict for the reason that the pleadings and evidence show that the alleged contract was nothing more than a preliminary and incomplete agreement to agree in the future and was without mutuality. This contention is without merit.
The pleadings in this case which were amply supported by the evidence clearly showed the execution by the parties of a present contract, certain and complete within itself, under the terms of which the plaintiff was to construct a building for the defendant according to stated and agreed requirements and stipulations in return for a stated consideration, subject only to a condition precedent that the defendant be awarded the government contract. Upon the occurrence of this contingency, as alleged and proved, the contract became mutually binding and enforceable as to each party. Mutuality of a contract is measured as of the time for performance, not the date of execution; and a contract is not deprived of mutuality because it is subject to a condition precedent. G. V. Corp. v. Bob Todd Realty Co., 102 Ga. App. 190 ( 115 S.E.2d 611); 17 CJS 786, Contracts, § 100; Morrow v. Southern Exp. Co., 101 Ga. 810, 812 ( 28 S.E. 998); Wehunt v. Pritchett, 208 Ga. 441 ( 67 S.E.2d 233); Breed v. National Credit Assn., 211 Ga. 629, 632 ( 88 S.E.2d 15).
The case of Wells v. H. W. Lay Co., 78 Ga. App. 364 ( 50 S.E.2d 755), which is strongly relied upon by the defendant, is not controlling here, as the court in that case was clearly dealing with an agreement to agree in the future, the terms of which future contract had not been agreed upon; and the court therein held in headnote 2 that: "A contract, to be enforceable, must be so certain and complete in its terms that either party may have an action on it." The court in the opinion stated at 366, 367: "In paragraph 2 of the original petition, it is alleged that, if the application is granted, the company would enter into a bilateral contract with petitioner. . . Thus construed, the petition alleges that the contract will be entered into after securing the permit. . . Nor does it appear that all the terms of the contract were ever agreed upon. . .
"`If there was in fact any essential part of the contract upon which the minds of the parties had not met, or upon which there was not an agreement, even though the negotiations evidence a complete willingness, or even an announced determination, to agree in the future upon such issues as might subsequently arise, it must still follow that a valid and binding contract was not made as of the earlier date.' National Bank of Kentucky v. Louisville Trust Co., 67 F.2d 97, 102. `Unless all the terms and conditions are agreed on, and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect.' 17 CJS 394. See also Board of Drainage Commissioners v. Karr Moore, 157 Ga. 284 ( 121 S.E. 298). `An agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.' Rosenfield v. United States Trust Co., 290 Mass. 210 ( 195 N.E. 323, 122 ALR 1210, 1216)."
It is thus apparent that the Lay case does not stand for the proposition that a present contract, certain and complete in its terms, may not be predicated upon a future contingency; and under the allegations of count 1 of the petition, as supported by the evidence, the parties here had executed such contract and had not merely reached a preliminary and indefinite agreement to agree in the future.
Accordingly, a finding was not demanded for the defendant as a matter of law on the pleadings or proof, and while the evidence was in sharp conflict on certain issues, the verdict rendered by the jury was fully authorized. The trial court did not err therefore in overruling the general demurrer and in denying the motion for judgment notwithstanding the verdict and the general grounds of the motion for new trial.
2. Special ground 4 which assigned error on an excerpt from the charge of the court on the sole ground that the charge was erroneous and not sound as an abstract principle of law is without merit. The principle of law embraced in the criticized charge is set forth word for word in Western c. R. Co. v. Michael, 42 Ga. App. 603 (5) ( 157 S.E. 226), and is clearly correct as an abstract principle of law. Western c. R. Co. v. Evans, 96 Ga. 481 ( 23 S.E. 494); Southern Bank v. Goette, 108 Ga. 796 ( 33 S.E. 974); Southern R. Co. v. Hobbs, 121 Ga. 428 ( 49 S.E. 294); Perry v. Kimberly Jewelry Co., 68 Ga. App. 568, 570 ( 23 S.E.2d 471).
An exception that a charge is erroneous and unsound as an abstract principle of law raises only the question as to whether the principle of law embraced in such charge is, standing alone, a sound pronouncement of law, Tucker v. State, 25 Ga. App. 196 (1) ( 102 S.E. 880), Bankers Health c. Ins. Co. v. Givens, 43 Ga. App. 43 ( 157 S.E. 906), White v. State, 141 Ga. 526 (1a) ( 81 S.E. 440), Mutual c. Assn. v. Hickman, 100 Ga. App. 348, 363 ( 111 S.E.2d 380); and unless the criticized charge is incorrect on its face, such assignment of error is without merit, as the court will not determine whether such charge was adjusted to the pleadings and evidence or was otherwise proper. Anderson v. Southern R. Co., 107 Ga. 500, 501 (4) ( 33 S.E. 644).
3. The trial court did not err as contended in special ground 5 in failing to charge the jury without request as follows: "I charge you that the testimony of a party appearing as a witness in his own behalf should not be construed most strongly against him unless that testimony is vague, equivocal, and ambiguous." This proposed but unrequested charge was merely elaborative and explanatory of the charge as delivered, and the trial court did not err in failing to give it in the absence of a timely written request to charge. Downer v. Bazzell, 216 Ga. 712 (2, 4) ( 119 S.E.2d 556); Lowe v. Athens Marble c. Co., 104 Ga. App. 642, 646 ( 122 S.E.2d 483); Jacobs' Pharmacy Co. v. Paschal, 145 Ga. 346 ( 89 S.E. 213); Lightfoot v. Southeastern Liquid Fertilizer Co., 102 Ga. App. 512 (3) ( 116 S.E.2d 651).
Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.