Pierson v. General Plywood Corp. , 76 Ga. App. 853 ( 1948 )

1. The contract alleged was too indefinite as to the quantity of timber to be logged, and as to the labor to be employed by the plaintiff and the kind and amount of equipment to be furnished by the defendant, to sustain the action for damages for its nonperformance.

2. The petition stated a cause of action for damages for any timber actually cut under the contract by the plaintiff before it was terminated by the defendant.

DECIDED APRIL 17, 1948. This is a suit to recover damages alleged to have been incurred because of the breach of a contract of employment. A demurrer to the petition was sustained, the action dismissed, and the case is here for review. The petition alleged in substance: that a contract of employment was made on June 1, 1946, under which the plaintiff was to "conduct logging operations for the next 12 months" for the defendant, "at such place as might be designated by said company;" that all labor necessary was to be furnished by the plaintiff; that the defendant would furnish all necessary equipment for all logging operations, and "would pay to your petitioner (the plaintiff) the sum of twenty dollars per thousand feet of logs felled, trimmed and loaded on the trucks of said corporation (the defendant) in the woods of said corporation." It was also alleged: The territory embraced under said contract for logging operations was, generally, to be in the State of Georgia, but it was understood and agreed that if the company could not find suitable timber tracts in Georgia, the operation would be conducted in North Carolina, or any other place designated by the company, so that there would not be any interruption or suspension in the work the plaintiff had contracted to perform. Under said contract the plaintiff conducted logging operations in the Altamaha swamps of Georgia from July 1 until November 22, 1946, during which period of 21 weeks the plaintiff logged and delivered to the defendant 989,350 feet of logs, for which the plaintiff realized a net profit of $238 per week, or $4998. The operations were terminated by the defendant after November 22, 1946, although the particular tract on which the plaintiff was working still contained about 2,000,000 feet of oak, cypress, and gum timber suitable for logging purposes. Thereafter, on January 28, 1947, the plaintiff again conducted logging operations under said contract for the defendant in North Carolina until they were terminated by the defendant on March 12, 1947. It was also alleged that during the interim between November 22, 1946, and January 28, 1947, and during the period from March 12 until the termination of the contract on June 30, 1947, the plaintiff sustained certain losses by reason of non employment, for which he sued. By amendment it was alleged that, when the North Carolina operations were terminated by the defendant, the plaintiff had felled, trimmed, and made available for the defendant certain timber within the contract specifications, for which the defendant refused to pay the contract price, and for which the defendant still owed the plaintiff $640.60.

The defendant contends that the contract sued on is unenforceable, because of its uncertainty and indefiniteness, in that the minds of the parties failed to meet respecting the kind or size of timber to be logged, the quantity to be logged per week or month or during the life of the contract, the labor to be employed by the plaintiff, the kind and amount of equipment to be furnished by the defendant, the hours per day and number of days per week the plaintiff would work, and whether on holidays days other than Sundays, and the number, kind, and capacity of trucks to be furnished by the defendant, and when such trucks should be furnished. The demurrer was sustained on the ground that the contract was void for indefiniteness. The law leans against the destruction of contracts on the ground of uncertainty. Leffler Co. v. Dickerson,1 Ga. App. 63 (57 S.E. 911). A contract will not be held void for uncertainty unless the intention of the parties cannot be fairly ascertained and effectuated. Verdery v. Withers,30 Ga. App. 63, 70 (116 S.E. 894). Where a contract is substantially alleged, some mere details may be implied, if an implication is warranted by the facts and circumstances of the particular case. 12 Am. Jur., Contracts, §§ 64, 239, 251. "Logging" and "logging operations" have been defined as the business of felling trees of merchantable size for lumber, cutting them into logs, and transporting the logs to sawmills or market. Hogan v. T. J. Moss Tie Co., 210 La. 362 (27 So.2d, 131); Peterson v. State Industrial Accident Commission, 140 Or. 326 (12 P.2d 564, 565).

"A contract is an agreement between two or more parties for the doing or not doing of some specific thing." Code, § 20-101. "In order that there may be an agreement, the parties must have a distinct intention common to both and without doubt or difference. Until all understand alike, there can be no assent, and, therefore, no contract. Both parties must assent to the same thing in the same sense, and their minds must meet as to all the terms. If any portion of the proposed terms is not settled, or no mode is agreed on by which it may be settled, there is no agreement." 17 C. J. S. 359, § 31. "One of the requirements of a valid contract is that it shall set forth a subject-matter upon which it can operate, with such certainty and completeness that either party may have a right of action upon it." Parks v.Harper, 43 Ga. App. 269 (158 S.E. 454). If it be said that the kind and size of the timber to be logged may be implied, under the facts and circumstances of this case, still, there is no way in which any reasonable inference or implication may be applied to effectuate the intention of the parties as to the quantity of timber to be logged over any stated period of time, or during the life of the contract. The hours per day and days per week the plaintiff would work may be fairly inferred, but there is nothing in the contract as alleged from which the amount of labor to be employed by the plaintiff, or the kind or amount of equipment to be supplied by the defendant, can reasonably be implied. It seems to us that the indefiniteness of the contract in these essentials renders it unenforceable in this action for a breach on account of nonperformance. See Prior v. Hilton Dodge Lumber Co.,141 Ga. 117 (80 S.E. 559); Carr v. L. N. R. Co.,141 Ga. 219 (80 S.E. 716); Weill v. Brown, 197 Ga. 328 (29 S.E.2d, 54); Devane v. Plunkett, 34 Ga. App. 677 (131 S.E. 118); Aero Construction Co. v. Grizzard, 76 Ga. App. 649 (46 S.E.2d 767).

The main case on which the plaintiff relies is Mimms v.Betts Co., 9 Ga. App. 718 (72 S.E. 271). At first blush that case seems applicable, but it is distinguishable on its facts. The contract there involved provided that the plaintiff might use "as many teams, not exceeding seven, as he should be able to purchase." He procured five teams and used them in the work for the defendant under the contract, and this court held that such performance by the plaintiff, accepted by the defendant as fulfilling the terms of the contract, cured any indefiniteness as to this feature of the contract. That was the only point apparently made and ruled on as to the indefiniteness of the contract in that case.

The court properly sustained the general demurrer to the petition in this case insofar as it related to the damages claimed for the nonperformance of the contract, but the petition stated a cause of action as to the damages sued for in the amendment. It is there alleged that, when the contract was terminated by the defendant, the plaintiff had felled, trimmed, and made available for the defendant certain timber within the contract specifications for which the defendant refused to pay the contract price. Under the ruling in Harrison Garrett v.Wilson Lumber Co., 119 Ga. 6 (45 S.E. 730), and other cases which could be cited, the court erred in sustaining the general demurrer as to the part of the petition contained in the amendment.

Judgment reversed. Sutton, C. J., and Felton, J., concur.