Williams v. Favret, 11840.

• Decision Date: 17 June 1947
• Docket Number: No. 11840.,11840.
• Citation: 161 F.2d 822
• Parties: WILLIAMS v. FAVRET.
• Court: U.S. Court of Appeals — Fifth Circuit

161 F.2d 822 (1947)

WILLIAMS v. FAVRET.

No. 11840.

Circuit Court of Appeals, Fifth Circuit.

May 13, 1947.

Rehearing Denied June 17, 1947.

P. Z. Jones and Ross R. Barnett, both of Jackson, Miss., for appellant.

John Harvey Thompson, of Jackson, Miss., for appellee.

Before HUTCHESON, McCORD, and WALLER, Circuit Judges.

HUTCHESON, Circuit Judge.

As appellant stated it in substance in his complaint and in haec verba in his brief, the suit was "for damages caused by defendant's refusal to contract with him for electrical work on a navy contract at Gulfport, Mississippi", which had been awarded to defendant as successful bidder.

The claim was that though he had invited a bid from plaintiff, had used it in bidding and obtaining the contract, and had accepted it, defendant had failed and refused to enter into a subcontract with plaintiff.

Defendant admitted that in making his bid as general contractor he had received and used plaintiff's bid, and that the general contract had been awarded to him, but he categorically denied that he, or anyone acting with his authority, had ever accepted plaintiff's bid or otherwise obligated defendant to subcontract the electrical work to plaintiff.

At the conclusion of plaintiff's evidence,¹ the defendant moved for judgment, and the district judge, before whom the case was tried without a jury, sustained the motion, made findings of fact² and of rule,³ and entered judgment for defendant.

Plaintiff is here insisting that the facts taken as a whole establish that a contract resulted and that it was error to deny him recovery. As his brief presents it, "The action was based upon an exchange of telegrams alleged by appellant to constitute an offer and acceptance which created the agreement to award him a subcontract". The argument is that while the telegrams of the 4th and 6th did not constitute an unconditional acceptance of the bid, they constituted a conditional acceptance, the condition being that defendant, as general contractor, be awarded the contract. Citing Louisiana Civil Code Sections and cases construing them,⁴ plaintiff develops his argument thus: The obligation was a suspensive obligation so long as the contract from the government was not awarded to appellee under his bid, but the awarding of the contract to appellee converted the conditional into an unconditional obligation.

We cannot agree. Plaintiff's bids to the several contractors were offers expressly made to continue until June 6th, and then be withdrawn in the absence of advices from the contractors that they were used in the figuring. Such advices were sent, and the bids remained open offers until accepted or withdrawn. That an offer does not ripen into a contract until acceptance is hornbook law. Plaintiff recognizes that this is so. He seeks to avoid its effect here by importing into the exchange of telegrams a conditional acceptance. Unfortunately for plaintiff, it is just as much hornbook law that where a contract is claimed as resulting from an offer and an acceptance, the offer must be clear, definite and complete, and the acceptance must be in the terms of the offer. The plaintiff's telegram of the 4th was not a conditional offer. It was an absolute one to continue under the condition fixed until accepted. Defendant's telegram of the 6th sent in direct response to plaintiff's of the 4th contains nothing from which an acceptance of the offer, conditional or otherwise, can be implied.

The district judge was right in holding that the exchange of telegrams constituted no contract. He was right too in holding that plaintiff did not prove a contract resting in parol. The judgment is affirmed.

McCORD, Circuit Judge (dissenting).

I think the exchange of telegrams constituted an offer and acceptance, and that the finding and conclusion of the trial court that there was no contract is clearly erroneous.

Favret, a general contractor, invited Williams, a subcontractor, to submit a bid on the electrical work at the U. S. Naval Training Center at Gulfport, Mississippi. Favret and Williams were strangers to each other, but each was familiar with the procedure for the award of government contracts on such projects, and both of them knew that the general contractor's overall bid would be opened along with other bids at 11 a. m. on June 6, 1944. Knowing that bids would be opened on June 6, 1944, Williams made his bid and advised Favret: "If our estimate used wire us collect prior to June 6 or else same is withdrawn." I think it clear that this language meant that Williams was not willing to leave his offer to the general contractor hanging in mid air, but that he wanted to have it accepted or rejected prior to the submission of the general contractor's bid. Favret, an experienced contractor, understood this qualification of Williams' bid, and, accordingly, moved to protect himself on June 6, 1944, by sending Williams a telegram advising him: "We used your bid for wiring on barracks and dispensary Gulfport." The telegram was sent by Harold Favret, the son and apparent agent of the general contractor. Harold Favret testified that his father authorized him to send the telegram. On that same morning, Harold Favret called Williams by long distance telephone and discussed the bid.

The bid of Favret on the project was accepted by the Government and he received the contract. Williams learned that the contract had been awarded to Favret and he set about ordering supplies and making arrangements to carry out his end of the work. He heard nothing from Favret about starting the work, and it was not until June 28, 1944, in answer to a letter of inquiry, that Favret advised Williams that he had given the electrical work to someone else. Favret advised Williams that the reason he gave the work to someone else was because "your bid * * * was found to be incomplete." But the bid was not incomplete, and Favret had not previously complained. Indeed, Williams' bid was used by Favret as a basis in the general bid which was accepted by the government. The excuse that the bid was incomplete is but an obvious afterthought excuse for avoiding a solemn agreement. The fact is that Favret, after accepting Williams' bid, shopped around and found that he could get someone else to do the work at a lower price. That a more advantageous contract could be entered into, should not permit the abrogation of a valid and binding contract already...