Florence City-County Airport Com'n v. Air Terminal Parking Co.

• Decision Date: 25 October 1984
• Docket Number: No. 0301,CITY-COUNTY,0301
• Citation: 283 S.C. 337,322 S.E.2d 471
• Court: South Carolina Court of Appeals
• Parties: FLORENCEAIRPORT COMMISSION, Respondent, v. AIR TERMINAL PARKING COMPANY, a/k/a ATP of Florence, Appellant.

Page 471

322 S.E.2d 471

283 S.C. 337

FLORENCE CITY-COUNTY AIRPORT COMMISSION, Respondent, v. AIR TERMINAL PARKING COMPANY, a/k/a ATP of Florence, Appellant.

No. 0301.

Court of Appeals of South Carolina.

Oct. 25, 1984.

Willcox, Hardee, McLeod, Buyck & Baker, P.A., Florence, for appellant.

McGowan, Keller, Eaton, Brodie & Elmore, P.A., Florence, for respondent.

CURETON, Judge:

This is a declaratory judgment action. Respondent, Florence City-County Airport Commission (Commission), brought action seeking a judicial determination that the appellant Air Terminal Company (Air Terminal) had defaulted in the terms of a lease agreement and that the lease should be cancelled. The trial court entered judgment for the Commission and Air Terminal appeals. We affirm.

The facts are undisputed. The Commission, the governing authority of the Florence City-County Airport, and Air Terminal entered into an agreement that permitted Air Terminal to operate the public parking facility at the Florence airport. The agreement contained a formula by which the parties established the fee Air Terminal would pay the Commission for the privilege of operating the parking facility. ¹ Paragraph five of the agreement provided further:

In the event of a partial suspension of activities by commercial airliners, causing a reduction in the number of enplaned passengers, then the monthly guaranteed fees shall be abated proportionately on a mutually agreeable and negotiated basis.

On March 22, 1982, Air Terminal wrote the Commission a letter advising that because a commercial airliner had suspended service to the airport and because there had been a thirty percent decrease in the number of "enplaned" passengers (comparing February 1980 statistics with February 1982 statistics), a thirty percent decrease in the rental would be in order. ²

Several days later, Air Terminal tendered by mail a check in the reduced amount for the month of April. The Commission negotiated the check on April 7, 1982.

By letter of May 4, 1982, the Commission advised Air Terminal that paragraph five of the agreement did not give it the right to reduce payments. The Commission also advised that it was prepared to meet with Air Terminal to negotiate a reduction in the rental fees if one was in order. ³

The circuit court found that there had been no decline in the number of enplaned passengers and that Air Terminal's unilateral reduction of rental fees constituted a default. It also ruled that Air Terminal's failure to cure the default resulted in a cancellation of the agreement.

The issues on appeal are (1) whether the trial judge erred in not finding that the parties agreed to reduce the monthly rental fees, and (2) whether the terms of the lease agreement permitted a default whether or not the monthly rental fees were paid.

With respect to the first issue, Air Terminal argues that the March letter was an offer to continue the lease at the reduced rental rate, which, when followed by the forwarding of the April rental check in the proposed reduced amount and the subsequent negotiation of the check by the Commission, amounted to an acceptance of its offer. We disagree. Plainly, the lease contemplated an adjustment in fees upon the reduction of the number of "enplaned passengers" at the airport. Nevertheless, such reduction would occur only on a negotiated or mutually agreeable basis.

A written contract may be modified by a subsequent agreement of the parties, Mebane v. Taylor, 164 S.C. 87, 162 S.E. 65 (1932), provided the subsequent agreement contains all the requisites of a valid contract. Wheeling Downs Racing Association v. West Virginia Sportservice, Inc., 157 W.Va. 93, 199 S.E.2d 308 (1973); 17 Am.Jur.2d Contracts Section 465 (1964). One receiving an offer to change a contract to which he is a party is held to be under no obligation to respond to it, and his silence cannot be construed as an acceptance where nothing else is shown. H.A. Sack Co. v. Forest Beach Public Service District, 272 S.C. 235, 250 S.E.2d 340 (1978); Raysor v. Berkley Co. Ry. & Lumber Co., 26 S.C. 610, 2 S.E. 119 (1887).

Air Terminal concedes that the parties never mutually agreed or negotiated a reduction in rental fees, but contends the acceptance of the check for less than the monthly lease fee amounted to an acceptance of Air Terminal's offer to modify the lease. Assent to an offer need not be expressed to constitute a contract, and may be inferred from acts and conduct. Ex Parte Stevens, Stevens & Thomas P.A., 277 S.C. 150, 283 S.E.2d 444 (1981).

An implied agreement, like an express agreement, rests upon the assent of the parties to be bound to a particular undertaking. The parties must manifest their mutual assent to all essential terms of the contract in order for an enforceable obligation to exist. Edens v. Laurel Hill, Inc., 271 S.C. 360, 247 S.E.2d 434 (1978). If one of the parties has not agreed, then a prerequisite to formation of the contract is lacking. Shealy v. Fowler, 182 S.C. 81, 188 S.E. 499 (1936).

Ordinarily, acceptance of a check for less than the amount due does not indicate assent to the lesser sum in satisfaction of the full sum due, unless acceptance of the lesser sum is intended by both parties as the equivalent of an accord and satisfaction. Redmond v. Strange, 203 S.C. 35, 26 S.E.2d 16 (1943); In Re McElmurray, 47 F.Supp. 15 (D.S.C.1942).

Even if we were to consider Air Terminal's March letter as an unconditional offer and not just an "offer to negotiate," there is nevertheless no evidence that the Commission intended its negotiation of the April check to constitute an accord and satisfaction. The...