W. J. Oliver Const. Co v. Reeder

• Decision Date: 15 January 1910
• Docket Number: (No. 1,927.)
• Citation: 66 S.E. 955,7 Ga.App. 276
• Parties: W. J. OLIVER CONST. CO. v. REEDER.
• Court: Georgia Court of Appeals

7 Ga.App. 276

66 S.E. 955

W. J. OLIVER CONST. CO.

v.REEDER.

(No. 1, 927.)

Court of Appeals of Georgia.

Jan. 15, 1910.

1. Contracts (§ 10^*)—Validity—Mutuality.

Mutuality is an essential element of every valid contract.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 21-40; Dec. Dig. § 10.*]

2. Contracts (§ 10*)—Contract op Employment—Mutuality.

A contract by which one agrees to give another employment for a specified length of time for the doing of work of variant character and expensiveness, at a price to be agreed on between the parties from time to time (though the minimum price at which any of it will be offered is stated), is not a binding contract upon the parties, except in so far as the parties thereunder shall from time to time agree upon the price; the person to whom the offer is made not being bound to do the work at the minimum price named, except at his option.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 21-40; Dec. Dig. § 10.*]

(Syllabus by the Court.)

Error from City Court of Statesboro; J. F. Braimen, Judge.

Action by J. J. Reeder against the W. J. Oliver Construction Company. Judgment for plaintiff, and defendant brings error. Reversed.

Johnston & Cone, for plaintiff in error.

Strange & Cobb, for defeudant in error.

POWELL, J. Reeder sued the W. J. Oliver Construction Company for certain damages which he alleged he had sustained by reason of the fact that the defendant had agreed to give him continuous employment for two years in the grading of a certain railroad, which was being built, and had failed to do so. To state the testimony most favorably to the plaintiff (for the verdict of the jury in his favor entitles him to have his case thus viewed), he made an oral agreement with the company, which was then engaged as contractor in the construction of a railroad from Statesboro, Ga., to Chattanooga, Tenn., that if he would bring his teams, laborers, and grading outfit from the place in Tennessee where they were then located to the point where the work was being done, the company would give him employment for grading a specified two miles of the work at the price of 17 cents per cubic yard, and further continuous employment for a period of two years at such price, not less than 17 cents per cubic yard, as the parties might thereafter agree upon. After the two miles of grading were completed, and after he had been furnished certain other temporary work to do, the company failed to give him further employment, because of which his loss ensued. He measured his losses by the amounts he had to pay out on account of his teams, etc., having been idle, and on account of having to sell his mules at less than the market price because of the situation in which he was left when the company failed to give him further work. Substantially this state of facts was set up in the petition, and possibly, since we are holding that the court ought to have sustained demurrers to the petition, it is not necessary that we should recite the testimony taken at the trial; but we believe that the principles of law which we are stating can be made more perspicuous by showing some of the things that did develop in the testimony, for it is frequently fair to test the validity of legal principles by attempting to apply them to given states of facts.

It developed in the testimony that after the plaintiff had brought his teams, outfit, etc., from Tennessee to the point where the work was being done, the defendant entered into a written contract with him by which he was to do two miles of work (mentioned above), at a price of 17 cents per cubic yard for the grading, plus so much extra for moving loose rock and for "grubbing"; that this part of the work was completed and duly and satisfactorily paid for; that he was then put to helping another subcontractor on another section of the work, and this was satisfactorily done and paid for. The work at that time was being carried on near Statesboro, in a section of the state where railroad grading is not very difficult, comparatively speaking; and the work was progressing toward the mountainous section of the state, where the grading, etc., would necessarily be much more expensive. The defendants encountered difficulty in getting money for their work from the railroad company and the work was generally suspended.

It would be profitless for us to elaborate the proposition that a contract, to be enforceable, must be mutual. Negotiations, propositions, and tentative understandings between parties do not become contracts until both parties are bound. Especially is this true as to contracts resting on mutual promises or undertakings. Generally speaking, if one party cannot hold the other to the terms of the contract and compel him to perform under it, or bring an action against him for his refusal to perform, the transaction is unilateral, and no contract exists as against either party. Take the present case: The plaintiff's action...