Rothberg v. Charles H. Hardin Const. Co.

• Decision Date: 06 January 1965
• Docket Number: No. 40986,No. 3,40986,3
• Parties: Samuel ROTHBERG v. CHARLES H. HARDIN CONSTRUCTION COMPANY
• Court: Georgia Court of Appeals

Page 520

140 S.E.2d 520

111 Ga.App. 41

Samuel ROTHBERG v. CHARLES H. HARDIN CONSTRUCTION COMPANY.

No. 40986.

Court of Appeals of Georgia, Division No. 3.

Jan. 6, 1965.

Rehearing Denied Jan. 25, 1965.

Syllabus by the Court

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.

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 allgations 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.

George G. Finch, A. Tate Conyers, Atlanta, for plaintiff in error.

Hansell, Post, Brandon & Dorsey, Charles E. Watkins, Jr., Atlanta, for defendant in error.

JORDAN, Judge.

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...