Aspironal Laboratories Inc v. Rosenblat

• Decision Date: 21 August 1925
• Docket Number: (No. 15824.)
• Citation: Aspironal Laboratories Inc v. Rosenblat, 129 S.E. 140, 34 Ga.App. 255 (Ga. App. 1925)
• Parties: ASPIRONAL LABORATORIES, Inc. v. ROSENBLAT.
• Court: Georgia Court of Appeals

34 Ga.App. 255

129 S.E. 140

ASPIRONAL LABORATORIES, Inc.

v.ROSENBLAT.

(No. 15824.)

Court of Appeals of Georgia, Division No. 2.

Aug. 21, 1925.

(Syllabus by Editorial Staff.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Unilateral Contract.]

[Ed. Note.—For other definitions, see Words and Phrases, Bilateral Contract.]

Error from Superior Court, Pulton County; E. D. Thomas, Judge.

Action by Samson Rosenblat against the Aspironal Laboratories, Incorporated.Judgment dismissing the petition on demurrer was reversed on certiorari to the superior court, and defendant bringes error.Affirmed.

The contract in question provided as follows:

"New York, June 23, 1920.

"Samson Rosenblat, 89 Fulton St., sold to Aspironal Laboratories, Atlanta, Ga., the following goods-subject to terms and conditions as stated below:

"In duplicate.

"Article: Menthol.

"Quantity: Ten cases(60 lbs. net, each case).

"Price and terms: $8.00 (eight dollars per lb.) per pound, duty paid, f. o. b. New York.Terms: Net ten days.

"Packing: Standard.

"Shipments: Three cases to be shipped Sept., 1920.3 cases shipped.Four cases to be shipped Oct., 1920.4 cases10/27/20.Three cases to be shipped Nov., 1920.

"Remarks:

"Payable in New York in U. S. coin or its currency equivalent.

"Seller reserves the right at its option, either to cancel this contract, or suspend further deliveries under it, in the event buyer fails to pay for any one delivery when same become due.Any quantity for which seller has not received shipping instructions at the expiration of time or times stipulated may at its option be canceled.

"Seller shall not be bound to tender deliveries under this contract.

"Deliveries may be suspended pending any contingencies beyond the control of the seller, such as strike, lockout, fire, floods, accidents, war or the like, internal disorders, interference by civil or military authorities, a short supply of fuel or raw material or other causes preventing the manufacture or shipment of the article.Any deliveries so suspended may, at option of seller, be delivered at the same rate of delivery, commencing after the period assigned to this contract, but seller shall in no way be liable to buyer for any loss caused by such postponement of delivery.

"This contract is subject to any change in or construction of the tariff, and of revenue laws, or changes in cost of raw materials due to war or the like.

"Accepted:

"Per H. M. Alford, Pres. & Treas."

A general demurrer to the plaintiff's declaration, on the ground that the alleged cause of action was predicated upon a void contract, or a unilateral contract, was filed in the municipal court.This ground was elaborated, and it is contended:

(1) That the contract is unilateral and void, because the same is not signed by and accepted by the defendant

(2) Because it provides that the seller shall not be bound to tender deliveries under this contract.

(3) Because it provides that, at the option of the seller, shipments may be suspended on account of certain things, including interference of "civil" authority (the courts for instance), and that further deliveries may, at the "option" of seller, be continued at the same rate.

(4) Said contract is void because it provides that it is subject to any change in the price of raw material.

(5) Said contract is void because it is too vague and indefinite for the court to determine the rights of the parties thereunder.

The judge of the municipal court dismissed the petition on this demurrer, and the judgment was reversed by the superior court on certiorari.

W. J. Laney and John P. Haunson, both of Atlanta, for plaintiff in error.

Carl Lancaster and Walter McDaniel, both of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, P. J.[1, 2] 1.Strictly speaking, a unilateral contract is one where the obligation incurred rests upon only one of the contracting parties, for the reason that the consideration of the other party has already been fully executed; this, as distinguished from a bilateral contract, in which are embraced reciprocal duties and obliga-tions, but the term unilateral is frequently and commonly employed to express a lack of mutuality.

2.The obligation of every bilateral contract, in order to be enforceable, must have the element of mutuality, and it is lacking when only one of the contracting parties is bound to perforin and the agreement could not be enforced as against the other.

3.Where the contract is such as under the statute of frauds must be in...