R. J. Daum Construction Co. v. Child

• Decision Date: 04 September 1952
• Docket Number: No. 7790,7790
• Citation: 122 Utah 194,247 P.2d 817
• Parties: R. J. DAUM CONST. CO. v. CHILD et al.
• Court: Utah Supreme Court

Page 817

247 P.2d 817

122 Utah 194

R. J. DAUM CONST. CO. v. CHILD et al.

No. 7790.

Supreme Court of Utah.

Sept. 4, 1952.

Critchlow, Watson & Warnock, George A. Critchlow, Alonzo W. Watson, Alonzo W. Watson, Jr., Ned Warnock, Salt Lake City, Edward L. Conroy, Los Angeles, Cal., for appellant.

Benjamin L. Rich, Gordon R. Strong, Salt Lake City, for respondent.

WADE, Justice.

Was there evidence from which it could reasonably be found that there was a meeting of the minds, thence a binding contract, is the question which this appeal presents. The trial court held as a matter of law that appellant did not accept respondents' bid and dismissed appellant's action. Plaintiff R. J. Daum Construction Company appeals. The dismissal was ordered at the pre-trial conference, after the parties had stipulated all of the evidence bearing on that question and each side had moved for a judgment in its favor on that question, appellant moved for a holding as a matter of law that there was a meeting of the minds and therefore a contract, and that only the amount of damages be submitted to a jury, and respondents moved for a dismissal of the action on the ground that as a matter of law the evidence showed no meeting of the minds. Though this motion was not expressly so designated, it was really a motion for a summary judgment under Rule 56(c), Rules of Civil Procedure so unless 'there is no genuine issue as to any material fact' and respondent 'is entitled to a judgment as a matter of law' the decision must be reversed. If there was evidence from which it would be reasonable to find that there was a meeting of the minds, the decision cannot be sustained.

Prior to June 20, 1950, Richard C. Riding, appellant's superintendent of construction for this area, asked Thomas B. Child, one of the partners of respondent Thomas B. Child & Company, to submit a bid on the masonry work of a government construction job at the Ogden General Depot, on which appellant intended to submit a bid as general contractor. Riding furnished Child with the plans and specifications except addendum No. 1, and later Child phoned to Riding's home his bid for $91,392. This was the lowest bid which appellant received for that work and it was used in figuring appellant's bid on the entire job at $190,392. The Government opened the bids on June 22, 1950, and found that appellant had submitted the lowest bid on the entire job. Within a few days child was notified of these facts and given to understand that when and if the contract was awarded to appellant, a sub-contract for the masonry work would probably be submitted to respondents, and he was asked to furnish a written verification of his bid which he furnished by a letter dated June 23, 1950. By a contract dated June 29, 1950, appellant was awarded this job; thereafter appellant mailed from its California office a proposed sub-contract which was dated July 11, 1950, for the masonry work. This proposed contract was signed by the vice-president of that company and respondent were requested to sign and return one copy thereof. Thereafter, Child objected to some of the terms of the proposed written contract and unqualifiedly refused to do this masonry work. Appellant sued for $79,500 damages.

Appellant claims (1) that the evidence would reasonably sustain a finding that appellant unconditionally accepted respondents' bid, and (2) that respondents are by their actions estopped from denying that there was a contract.

Appellant's contention (1) presents two problems: (a) Was there an oral acceptance? and (b) Was the proposed written contract an acceptance or was it a rejection and counter-offer? We consider these questions in the order stated.

All of the negotiations between these parties were between Thomas B. Child and Richard C. Riding, except that appellant's California office drew up, executed and sent to Child the proposed written contract. The deposition of each of these persons was taken and is a part of this record. The evidence of an oral acceptance is substantially as follows: Appellant received only two bids on this brick work before submitting its bid to the Government. One was for $151,743; since respondents' bid was much lower, it was used by appellant in figuring its bid to the Government. On the same day and immediately after the Government had opened the bids, appellant received a third bid on the brick work for $105,000, and after respondents had refused to do this work, appellant sought and obtained a fourth bid for this work of $95,000, which it accepted. Shortly after the Government opened the bids, Child and Riding talked together over the telephone, in which conversation Child was informed that appellant was the low bidder and that respondents' bid for the brick work was the lowest bid and had been used by appellant in figuring its bid to the Government, and Child was asked to furnish a written confirmation of their bid which he did by a letter dated June 23, 1950, only one day after the bids were opened. To this confirmation a postscript was attached in the handwriting of Child, which read: 'Add for each fire door if filled $175.00.' Riding testified that this postscript covered part of the specifications of addendum No. 1, that he could not remember having talked with Child about this, that he had not shown Child a copy of that addendum, but felt that it was clear that he must have talked with Child about that addendum for otherwise Child would not have written that postscript.

Riding further testified that sometime after the above conversation, he called Child on the telephone and asked him how he wanted to handle the reinforcing steel, whether respondents would place it or appellant should do that through another subcontractor, and that Child told him that he would rather place it provided it was all bent, cut and designed properly. He further testified that at the time of this conversation appellant did not have any contract with the Government, had not given Child any contract or accepted his proposal, that up to that time it was all just preliminary negotiations, and that prior to mailing to respondents the proposed written contract appellant's office had not confirmed or accepted respondents' bid.

There is no material conflict between the testimony of Riding and Child. Child's version was that there was only one telephone conversation between him and Riding after the bids were opened until about July 14, after he had received the proposed contract from the California office, and that in that conversation all the matters detailed above were discussed, and his testimony does not materially disagree with Riding's testimony as to what was said about such matters. He testified that Riding told him that they were the low bidder, that they expected to get the job, that 'it takes the Government quite a while to decide what they want, but after we have got fixed up for it we will give you a form of contract'.

Appellant relies on one other thing as showing that Child understood that his bid had been accepted. Riding testified that after Child had refused to have any more to do with that job he agreed to turn over to appellant an order for brick for that job which he had placed with a brick company. But on further questioning he admitted that he did not know whether Child said he had ordered such brick or not. Child positively denied that he had ordered any brick for that job but said that he had told the brick company that he expected to get that job and inquired about the price; he testified that he had agreed to use his influence with the brick company so that appellant could get the brick.

If appellant unconditionally accepted respondents' offer before it was withdrawn, there was a binding contract. Such an acceptance requires manifestation of unconditional agreement to all of the terms of the offer and an intention to be bound thereby. Such manifestation may be either written or oral or by actions and conduct or a combination thereof, but regardless of the form or means used, there must be made manifest a definite intention to accept the offer and every part thereof and be presently bound thereby without material reservations or conditions. See Thornton v. Pasch, 104 Utah 313, 139 P.2d 1002; Restatement of the Law of Contracts, Vol. 1, Ch. 3, Secs. 21, 25 and 26; 17 C.J.S., Contracts, Secs. 33, 41a, and 49, pages 362, 373, 394; 1 Williston on Contracts, Revised Ed. 43 to 67, Secs. 22a to 29. On this, the Restatement Sec. 26 says:

'Mutual manifestations of assent that are in themselves sufficient to make a contract will not be prevented from so operating by the mere fact that the parties also manifest an intention to prepare and adopt a written memorial thereof; but other facts may show that the manifestations are merely preliminary expressions as stated in Sec. 25.

'Comment a. Parties who plan to make a final written instrument as the expression of their contract, necessarily discuss the proposed terms of the contract before they enter into it and often, before the final writing is made, agree upon all the terms which they plan to incorporate therein. This they may do orally or by exchange of several writings. It is possible thus to make a contract to execute subsequently a final writing which shall contain certain provisions. If parties have definitely agreed that they will do so, and that the final writing shall contain these provisions and no others, they have then fulfilled all the requisites for the formation of a contract. On the other hand, if the preliminary agreement is incomplete, it being apparent that the determination of certain details is deferred until the writing is made out; or if an intention is manifested in any way that legal obligations between the parties shall be deferred until the writing is made, the preliminary negotiations and agreements do not constitute a contract.'

An acceptance must be clear, positive and unambiguous. See Williston on...