88 S.E.2d 701

A. C. SAMFORD, INC. v. BEECH et al.; and vice versa.

35708, 35709.Court of Appeals of Georgia.
DECIDED JULY 14, 1955.

The agreement sued on in this case was void and unenforceable by reason of its indefiniteness because the undertaking provided for was self-contradictory and the real intention of the parties cannot be ascertained. The court erred in overruling the motion for a new trial.

DECIDED JULY 14, 1955.
Action on contract. Before Judge Jones. Albany City Court. March 17, 1955.

Standard Plastering Company, a partnership composed of W. W. Beech and Paul D. Beech sued A. C. Samford, Inc., to recover damages for the breach of an alleged building subcontract entered into between the parties under the provisions of a contract entered into between the Bank of Albany as owner and the

Page 503

defendant as principal contractor. The pertinent provisions of the agreement sued on, signed by both parties, are: “Subject to the approval of the architect and in accordance with your proposal, this is your formal order to furnish all labor and materials to do the lathing and plastering on the Bank of Albany Office Building in exact accordance with the plans and specifications as prepared by Harry A. MacEwen and Associates
for the sum of $7,800. . .” (Italics supplied.) The action was in three counts. The first merely alleged the contract and its breach. The second in addition alleged that both parties acted on the agreement as immediately effective and that both parties understood that the words “Subject to the approval of the architect” meant that the work was so subject and that the approval of the architect was not a condition precedent to the agreement’s becoming effective. The third count in addition alleged that if the approval of the architect was a condition precedent, it was waived. The court sustained the demurrers to counts one and two and overruled the demurrers to count three. The jury found for the plaintiff. The defendant excepts to the denial of its motion for a new trial and to the overruling of the demurrers to count three, both general and special. The order of the court as a whole is construed to have passed only on the general demurrers to counts one and two for the reason that counts two and three are almost identical, and the special demurrers to count three, similar to those of counts one and two, were overruled. The plaintiff, by cross-bill excepts to the sustaining of the demurrers to counts one and two.

Smith, Gardner Owens, for plaintiff in error.

Farkas, Landau Davis, James V. Davis, contra.

FELTON, C. J.

The gravamen of the special demurrers to count three, so far as pertinent to a decision in this case is that the plaintiff did not allege the specifications in the main contract between the owner and principal contractor, as to the part of the work the plaintiff was bidding on, and did not allege the bid submitted by the plaintiffs so that the petition would show what the agreement between the parties actually was. If this case had come here on an exception to the overruling of the demurrers to count three, and there had been no trial, we would have held that the special demurrers to count three should have been sustained

Page 504

and would have reversed the case because the error would have at that point been considered harmful. However, since the case has been tried and since the evidence showed the facts sought by the special demurrers to count three and the defendant was put to no disadvantage by the overruling of the demurrers, the court will treat the error as harmless, as the defendant’s motion for a new trial on the general grounds affords the same protection as the exception on the rulings on the demurrers. In answer to the invitation to submit a bid on the lathing and plastering work on the Bank of Albany building the plaintiff submitted a proposal which is conceded was not in accordance with the architect’s plans and specifications for the building. After the principal contractor received the proposal from the defendant, the defendant mailed to the plaintiff the contract sued on which was accepted by the plaintiff. It is evident from such acceptance by the plaintiff that it was cognizant of the fact that such instrument was not an acceptance of its bid or proposal, and treated it as a new proposal by the defendant. Assuming for the sake of argument only, that the words “subject to the approval of the architect” constituted a condition subsequent, the proposal and its acceptance by the plaintiff did not constitute a valid enforceable contract for the reason that within itself it is contradictory and conflicting because it provided that the work should be done both according to the plaintiff’s proposal and the plans and specifications, which was impossible, and in such a case the agreement must be condemned as of no force and effect. 17 C. J. S. 726, § 309. The agreement is unenforceable because by no known rule on the subject of construction of contracts can it be ascertained whether the parties intended to do the lathing and plastering work according to the proposal made by the plaintiff or in accordance with the architect’s plans and specifications which were materially different from the plaintiff’s proposal. The work could not possibly be done in both ways and there is no way by which it could be ascertained in which of the two ways the work, etc., was to be done. The contract sued on was unenforceable by reason of its indefiniteness and the court erred in overruling the defendant’s motion for a new trial. This ruling settles all issues in the case, and it is not necessary to pass on the cross-bill of exceptions.

Judgment reversed on the main bill of exceptions; cross-bill dismissed. Quillian and Nichols, JJ., concur.

Page 505