Buick Motor Co. v. Thompson , 138 Ga. 282 ( 1912 )

Lumpkin, J.

(After stating the foregoing facts.) Thompson sued the Buick Motor Company for a breach of contract. The defendant filed a demurrer, which was overruled, and it excepted. In addition to the general grounds there were also certain special grounds; but‘they are not urged or referred to in the brief of counsel for plaintiff in error, and therefore, under the uniform ruling of this court, will be treated as abandoned; and we will deal with the general grounds only.

1, 2. It was urged that the contract was unilateral; and that it did not bind the plaintiff to buy, and accordingly did not bind the defendant to sell. Where mutual promises are relied on as the consideration to support a contract, the obligations of the contract must be mutually binding upon the respective parties. Morrow v. Southern Express Co., 101 Ga. 810 (28 S. E. 998). This does not exclude the fact that one may, for a valuable consideration other than such mutual promises, bind himself by an option or offer to sell on certain terms during a specified time. In such a ease he is bound to keep the offer open during the specified time, for the other party to accept or decline to buy. If acceptance is made within the time prescribed, the transaction then ceases to be a mere option or offer, and becomes a contract to sell and buy. Simpson & Harper v. Sanders & Jenkins, 130 Ga. 265 (60 S. E. 541).

It was contended, on behalf of the plaintiff in error, that this agreement belonged, to the class first mentioned; that there was no consideration for the making of the contract unless there were mutual promises; that in any event the defendant in error did not bind himself to buy cars, and the plaintiff in error was not bound to sell cars; that the agreements limiting sales by the defendant in error to Mitchell county, declaring the contract terminable on ten days notice, requiring a report of any sales made, and a deposit (of $200 by the defendant in error, were not consideratio'ns for the ’making of the contract, so as to bind the plaintiff in error to sell ‘¡to the defendant in error any automobiles.

If it should be conceded that the agreements as to territory and reports were merely regulatory, in case sales were .made to the defendant in error, and that the deposit was not a payment or such part performance as to be a consideration for a promise to sell, but only a guaranty of settlement if sales should be made, still how stands the case? An offer to sell on certain terms, without consideration therefor, is unilateral, and may be withdrawn before acceptance. After acceptance while still open and an agreement to buy, it ceases to be unilateral and becomes bilateral and binding. Blade v. Maddox, 104 Ga. 157 (30 S. E. 723). If the offer is not for.any specified amount, or an amount determinable by proof, such as what is necessary for a certain purpose, but is generally to furnish upon order, then the giving of an order for a certain thing or amount included in the offer, before its withdrawal or termination, makes a definite and fixed contract as to the thing or things so ordered. McCaw Manufacturing Co. v. Felder & Rountree, 115 Ga. 408 (41 S. E. 664); Harrison & Garrett v. Wilson Lumber Co., 119 Ga. 6 (45 S. E. 730); 1 Page, Con. 456, § 307.

The first count of the petition alleged in effect that, during the time specified in the contract for its continuance and in accordance with its terms, the defendant in error received orders and made sales of several automobiles. The second count, in addition to the original contract, set out a letter treating .the contract as continuing after the time fixed for its expiration, and the taking of orders and the making of sales while it was in force. Each of them alleged promises by the defendant to ship the cars ordered. and a subsequent failure and refusal to do so. In the first count was an allegation seeking to set up liability on account of certain cars not ordered. But if it did not set out a right of recovery as to such item, that would not furnish ground to dismiss the entire case.

3. It was contended on behalf of the plaintiff in error, that the words “conditions permitting” in the contract created a condition precedent, and that it was incumbent on the plaintiff to allege that conditions permitted; and also (as stated in the brief) that “these words reserved to the company the decision as to whether conditions permitted.” For the defendant in error it was argued, that if these words have any force to relieve the company of liability, they do not create a condition precedent, but such conditions should be set up by way of defense; and also that the allegations showed a waiver by promise to deliver the machines. If those words created a condition precedent, the burden of alleging and showing the happening of the event would be on the plaintiff. If they created a condition subsequent, the burden of setting it up would rest on the defendant. If the contention of the plaintiff in error is correct, the entire agreement as to sales amounted to no more than this: If the defendant in error desired to buy, and the plaintiff in error thought the conditions permitted it to sell, there would be a trade, otherwise not. Such an agreement would amount to no contract at all as to sales. It can hardly be supposed that these parties went through the idle form of making a written proposition and an acceptance merely to declare that there might be a trade if each desired to make it. They fixed a limit of time for the operation of the contract, and the number of certain models which might be ordered, provided for a termination of the contract on ten days notice, and stated the making of a deposit of $200 by the defendant in error. Was all this an elaborate method of declaring that no contract was actually intended to be made, but only in case one party ordered cars and the other thought conditions permitted their sending them? What conditions? What was to be considered, — the number of cars on hand, or of orders already accepted from others, or the capacity of the manufactory, or the number of laborers whom the company might see fit to employ or discharge, or its financial condition, or the general financial condition of the country, or the condition of the weather, or what conditions? It will be readily seen that if the words “conditions permitting” create a condition precedent, and impose on the defendant in error, suing for a breach of such contract, the duty of pleading and proving that conditions permitted the plaintiff in error to fill the orders, it places on him an impossible burden. On the other hand, if there were conditions legitimately excusing the plaintiff in error from performance, they were peculiarly within its knowledge.

It has been held that where one of two contracting parties prepares a written or printed contract and obtains the signature of the other party, if it contains ambiguous terms, and such ambiguity "is not explained, the construction which goes most strongly against the party so preparing it will generally be preferred. Moorefield v. Fidelity Mutual Life Insurance Co., 135 Ga. 186 (69 S. E. 119), and citations. In Griswold v. Scott, 13 Ga. 210, suit was brought on a written contract by which the defendant acknowledged the receipt from the plaintiff of a gin, “and if on trial it performs well, I promise to pay said Griswold [the plaintiff] or bearer $80, for value received, by the 25th of December, 1910.” It was held that this created a condition subsequent; that the vendee was prima facie liable to pay the specified amount; and that the defendant could set up that the machine failed to perform well on the trial of it.

Considering the contract involved in this case as a whole, we are of the opinion that the words “conditions permitting” did not create a condition precedent, requiring the plaintiff in the court below, defendant in error here, to allege and prove that conditions permitted, before he would be entitled to recover. Whatever force they may have may be invoked by the defendant in the court below by way of defense.

Moreover, the defendant in error alleged that at various times' the plaintiff in error promised to have the cars shipped, in order that they might be delivered to the purchasers from him, but that the company finally failed and refused to do so.

There was no error in overruling the general demurrer to the petition. Judgment affirmed.

All the Justices concur.