Stanley Smith & Sons v. Limestone College, 0303

• Decision Date: 20 June 1984
• Docket Number: No. 0303,0303
• Citation: 283 S.C. 430,322 S.E.2d 474
• Court: South Carolina Court of Appeals
• Parties: STANLEY SMITH & SONS, Respondent, v. LIMESTONE COLLEGE, The Board of Public Works of the City of Gaffney, Hartford Accident and Indemnity Company, Jack E. Millwood, Basil H. Clary, Sr., and Joe Dean Knuckles, of whom The Board of Public Works of the City of Gaffney is the Appellant. Appeal of BOARD OF PUBLIC WORKS OF CITY OF GAFFNEY. . Heard

Page 474

322 S.E.2d 474

283 S.C. 430

STANLEY SMITH & SONS, Respondent, v. LIMESTONE COLLEGE, The Board of Public Works of the City of Gaffney, Hartford Accident and Indemnity Company Jack E. Millwood, Basil H. Clary, Sr. and Joe Dean Knuckles of whom The Board of Public Works of the City of Gaffney is the Appellant Appeal of BOARD OF PUBLIC WORKS OF CITY OF GAFFNEY.

No. 0303.

Court of Appeals of South Carolina.

Heard June 20, 1984.

Decided Oct. 29, 1984.

James R. Thompson, of Saint-Amand, Thompson & Brown, Gaffney, for appellant.

F. Glenn Smith, Columbia, for respondent.

BELL, Judge:

This is an action in contract for damages. The jury returned a verdict for $37,255.24 in favor of Stanley Smith & Sons. The Board of Public Works appeals, asserting no contract exists between the parties as a matter of law. We reverse.

In March 1976, Stanley Smith contracted with Limestone College in Gaffney to construct a gymnasium on campus. The building was completed on or before October 1, 1976, at a cost to the College of $655,178. On October 1, 1976, Gaffney experienced extraordinarily heavy rainfall. Flood waters backed up through the sewer system of the gymnasium, doing serious damage to the property. Stanley Smith repaired the damage at a cost of $37,255.24. It then sued the College, the Board of Public Works, and the Board's insurance carrier for payment. At preliminary stages in the suit, the claims against the insurance carrier, the College, and the individual defendants were dismissed. The case went to trial against the Board alone. Stanley Smith tried the case on the theory that an implied contract existed between it and the Board to repair the flood damage on a "cost-plus" basis.

At appropriate stages of the trial, the Board moved for a nonsuit, a directed verdict, and for judgment non obstante veredicto on the ground that Stanley Smith failed to prove an implied contract. The Board appeals from the circuit court's denial of these motions.

In deciding motions for a nonsuit, for a directed verdict, or for judgment notwithstanding the verdict, the trial judge must consider the evidence in the light most favorable to the party opposing the motion. Dunsil v. E.M. Jones Chevrolet Co., 268 S.C. 291, 233 S.E.2d 101 (1977); Allstate Insurance Co. v. State Farm Mutual Automobile Insurance Co., 260 S.C. 350, 195 S.E.2d 711 (1973); Melton v. Williams, 281 S.C. 182, 314 S.E.2d 612 (S.C.App.1984). If more than one reasonable inference can be drawn from the evidence when so viewed, this Court will not reverse the trial judge's ruling denying the motions. Mylin v. Allen-White Pontiac, 281 S.C. 174, 314 S.E.2d 354 (S.C.App.1984). On the other hand, if there is no evidence to support an essential element of the plaintiff's cause of action, the case should not be submitted to the jury, and a verdict in the plaintiff's favor cannot be permitted to stand. Young v. Tide Craft, Inc., 270 S.C. 453, 242 S.E.2d 671, 1 A.L.R. 4th 394 (1978).

Stanley Smith brought this action in contract. A contract is an obligation which arises from actual agreement of the parties manifested by words, oral or written, or by conduct. Gaskins v. Blue Cross-Blue Shield of South Carolina, 271 S.C. 101, 245 S.E.2d 598 (1978); Moore v. Palmetto State Life Insurance Co., 222 S.C. 492, 73 S.E.2d 688 (1952). If agreement is manifested by words, the contract is said to be express. Thomas v. Lomax, 82 Ga.App. 592, 61 S.E.2d 790 (1950). If it is manifested by conduct, it is said to be implied. Dowling v. Charleston & W.C. Ry. Co., 105 S.C. 475, 81 S.E. 313 (1913). In either case, the parties must manifest a mutual intent to be bound. Hughes v. Edwards, 265 S.C. 529, 220 S.E.2d 231 (1975); Shealy v. Fowler, 182 S.C. 81, 188 S.E. 499 (1936). Without the actual agreement of the parties, there is no contract. Edens v. Laurel Hill, Inc., 271 S.C. 360, 247 S.E.2d 434 (1978).

In its complaint, Stanley Smith alleged an express promise by the Board to pay for the repairs. However, it now concedes no express contract has been proven. It admits there was no proof the Board requested it to repair the flood damage to the gymnasium or agreed to pay "cost-plus" for such repairs. In fact, the repairs were made at the express request of the College in accordance with specifications contained in the original contract between Stanley Smith and the College. The Board neither participated in nor expressly approved any decisions concerning how the gymnasium would be repaired.

Because it was unable to show an express contract, Stanley Smith now argues an implied contract was proven. See Braswell v. Heart of Spartanburg Motel, 251 S.C. 14, 159 S.E.2d 848 (1968) (complaint alleging express contract does not limit plaintiff to proof of express contract; he may support complaint by evidence of facts giving rise to implied contract). It further asserts it does not have to prove every element of the contract to recover on an implied contract. This argument misstates the law.

An implied contract, like an express contract, rests on an actual agreement 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., supra. If one of the parties has not agreed, then a prerequisite to formation of the contract is lacking. Shealy v. Fowler, supra. Therefore, Stanley Smith must prove the Board's assent by conduct to all those terms essential to create a binding contract. One such essential term is the price for which the work is to be performed. See Edens v. Laurel Hill, supra.

Stanley Smith relies on...