Farrell v. County of Greenlee , 15 Ariz. 106 ( 1913 )

ROSS, J.

The appellee had let a contract for the construction of a courthouse and jail at the agreed price of $43,000. The board of supervisors employed appellant to superintend the work of construction by.its resolution of date January 17, 1912, which resolution is as follows: “Upon motion of B. F. Billingsley, seconded by Geo. Webster, it was ordered that J. A. Farrell be employed to superintend the construction of the courthouse and jail at a compensation equal to five per cent of the amount of contract price (less amount already expended). Said employment of J. A. Farrell shall be effective and become of force and virtue January 17, 1912. It is further ordered that the clerk of the board notify Mr. Farrell of the above motion in writing.” The appellant performed services under the resolution until February 17, 1912, when he was discharged by the board. On February 29,1912, appellant filed his demand against the county with the board of supervisors for a breach of the contract, claiming his damages at five per cent of the contract price, less amount already in buildings. He showed in his demand that he had been paid $469.51 on account, and claimed a balance of $1,553.22. He filed this suit March 14, 1912, for the above-stated balance. The appellee, in its answer, among other things, set up a counterclaim for $344.41, claiming that it overpaid appellant that amount in the estimate of $469.51. The court found that there was no breach of the contract when the board discharged the appellant, and also found that appellant was overpaid in the sum of $257.25. The appellant prosecutes this appeal from the judgment.

The resolution of date January 17, 1912, cannot be said to be a contract of employment. At most it is an offer of employment. “A promise is a good consideration for a promise” (1 Parsons on Contracts, 9th ed., 486) ; but the record fails to show that appellant promised to do anything. The complaint alleges that “the board of supervisors of said Greenlee county duly passed a resolution, wherein and whereby said county employed and entered into a contract with this plaintiff to superintend the construction of said courthouse and jail”; but there is no allegation that appellant agreed to accept such employment. In Vogel v. Pekoc, 157 Ill. 339, 342, 30 L. R. A. 491, 493, 42 N. E. 386, the court said: “It is a general rule, well understood, that a contract between parties must be mutual. Weaver v. Weaver, 109 Ill. 233; Chitty on Contracts, 15; Bishop on Contracts, sec. 78, p. 32; Tucker v. Woods, 12 Johns. (N. Y.) 190, 7 Am. Dec. 305. In the case last cited it is said: ‘In contracts, where the promise of the one party is the consideration for the promise of the other, promises must be concurrent and obligatory upon both at the same time.’ 1 Chitty on Contracts, 297; Livingston v. Rogers, 1 Caines (N. Y.), 584. In Chitty on Contracts, supra, the author says: ‘The agreement, as before observed, must, in general, be obligatory upon both parties. There are several eases satisfactorily establishing that, if the one party never was bound, on his part, to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality. ’ In Wharton on Contracts, section 2, the author says: ‘ The parties to a contract, therefore, must be both bound. Supposing that, if one promises in consideration of the promise of the other, the one is not bound unless the other is bound. A promise to do a thing on an ■executed consideration is not a contract, nor is a promise to do a thing in consideration of an illegal or impossible engagement on the other side. Without this reciprocal obligation no contract can be constituted.’ ”

There is no provision in the board’s resolution as to when or how appellant’s compensation should be paid; but both parties construed the resolution as providing that seventy-five per cent of the compensation should become due and payable upon the estimates of work and material in place in the buildings as made by the superintendent. The appellant so figured his compensation in his demand against the county, and it was allowed by the board of supervisors on that basis. Thus it is seen that the contract was divisible in the sense that it had been given the practical construction by both parties as requiring partial payments upon estimates as made by the superintendent. Therefore, the damages sustained by appellant may be reckoned as five per cent of the estimated cost of labor and material put into the building during his superintendency—-from January 17 to February 17, 1912. A finding of the court is to that effect.

The employment of appellant was evidenced by a minute entry on the records of the board of supervisors, and was a unilateral contract in that the board undertook to bind the county to employ the appellant to superintend the construction of buildings, and to pay him five per cent commission therefor ; but there is nothing in the contract binding the appellant to render his services. The complaint also alleges a unilateral contract. There is a lack of mutuality in the contract. The appellant did not agree to do anything. As we have seen, the parties to it had construed it as divisible inasmuch as appellant was to be paid from time to time upon estimates made by himself as superintendent. The appellant was not obligated by' any agreement of his to remain in the service of the county until the buildings were completed, and, that being true, the county was at liberty to dispose of his service before the completion of the buildings, and a payment of his wages at the agreed price to the time of his discharge is the extent of its obligation. The court decided that the board of supervisors, under the terms of its resolution, violated no rights of appellant in discharging him, and we conclude that the court was right.

We affirm the judgment.

FRANKLIN, C. J., concurs.