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Lawskills.com Georgia Caselaw
PEACHTREE MEDICAL BUILDING, INC. v. KEEL.
39896.
Action on contract. Fulton Civil Court. Before Judge Camp.
CARLISLE, Presiding Judge.
1. In a suit to recover damages for an anticipatory breach of a building contract the petition must set forth the subject matter of the contract with sufficient certainty to identify the proposed construction.
2. The contract here alleged, and as amended to include allegations seeking a recovery for other services rendered and to be rendered in connection with the acquisition and general development of the real estate and for promotional services in the sale of corporate stock of the defendant, was too vague and indefinite to be enforceable.
3. The petition did not set forth a cause of action, and the court erred in overruling the general demurrer.
This was a suit to recover damages for an anticipatory breach of an alleged building contract. Plaintiff's petition describes a course of dealings with defendant and its agents both before and after the formation of defendant corporation, and recites numerous promotional meetings in which plaintiff appeared as general contractor for proposed construction. The petition identifies the real estate on which the building was to be erected, states that plaintiff advised defendant as to the acquisition of additional adjacent property, and describes numerous meetings with agents of the defendant and the architect looking toward the planning of the building. It recites the preparation of at least three sets of preliminary plans and specifications by the architect and submission by plaintiff of three estimates based thereon. The petition finally alleges that plaintiff appeared at a meeting of defendant's board of directors, restated the terms of his proposal for the construction of the building to be erected on the specified real estate, the terms of the contract and proposal being that he would act as general contractor for the construction on a cost-plus basis for a flat fee of $40,000. Thereafter, defendant, acting through its president and pursuant to the authorization of its board of directors, wrote plaintiff advising that his proposal of $40,000 plus-cost of construction was a fair and acceptable fee "for our proposed construction," and requested that plaintiff submit to the architect a definite list of the cost items to be included. The petition recites the submission of such list, a copy of which is attached to the petition showing the approval of the architect thereon; enumerates acts of plaintiff preparatory to the beginning of construction such as wrecking the existing buildings thereon and the grading of the property, the erection of a fence, and the submission of plans and specifications for bids of subcontractors. It recites, after publication of a brochure depicting the proposed building, the erection of a sign advertising its construction, and negotiations for a performance bond, that the defendant instructed plaintiff to recall the plans and specifications previously submitted to subcontractors and that the defendant then had its architect submit plans and specifications to other general contractors for competitive bids. Plaintiff alleges that defendant breached "the contract" by refusing to permit petitioner to complete performance of the construction although he was ready, willing, able and had offered to do so. By amendment it was further alleged that, in connection with the terms of "petitioner's contract and proposal" to the board of directors, it was provided that "petitioner would continue as he had in the past to assist in promoting defendant corporation the sale of its stock, and in the acquisition and general development of the real estate on which the building" was to be constructed, and that the $40,000 fee would cover all services rendered and to be rendered. Defendant filed a general demurrer which was overruled, and the exception here is to that judgment.
1. A contract is an agreement between two or more parties for the doing or not doing of some specified thing, Code 20-101, and to constitute a valid contract there must be a subject matter upon which it can operate. Code 20-107. In order that it may allege an agreement, a petition must set forth a contract of such certainty and completeness that either party may have a right of action upon it, Parks v. Harper, 43 Ga. App. 269 (158 SE 454), and a building contract, to be valid, must have the necessary element of certainty just as other contracts. Brown-Randolph Co. v. Gude, 151 Ga. 281 (106 SE 161). In this case, plaintiff has not alleged a valid contract in that the "proposed construction" is not set forth with sufficient certainty to identify the building on which the purported agreement is to operate.
The requirement of certainty extends not only to the subject matter and purpose of the contract, but also to the parties, consideration, and even the time and place of performance where these are essential. Williams v. Manchester Bldg. Supply Co., 213 Ga. 99 (97 SE2d 129). When a contract is substantially alleged, some details might be supplied under the doctrines of reasonable time or reasonable requirements. Prior v. Hilton &c. Lumber Co., 141 Ga. 117 (80 SE 559). But indefiteness in subject matter so extreme as not to present anything upon which the contract may operate in a definite manner renders the contract void. Douglass v. Williams Art Co., 143 Ga. 846, supra; Aero Const. Co. v. Grizzard, 76 Ga. App. 649 (2) (46 SE2d 767); Jones v. Ely, 95 Ga. App. 4 (96 SE2d 536).
2. By amendment plaintiff has added allegations of other services rendered and to be rendered in promoting the sale of defendant's stock and in the acquisition and general development of the real estate which was to be the situs of the construction. But plaintiff does not specify the duties to be performed or the services which he would render as assistance in these activities. He does not state the quality of such services, their duration, the time or place for performing same. Construing plaintiff's amended petition as a contract of more general employment than one for proposed construction only, the contract is for an indefinite period and as to its essentials is without the assent of the parties. Because of such indefiniteness, the petition does not set forth an enforceable contract. Weill v. Brown, 197 Ga. 328 (29 SE2d 54), and cases cited; Atlantic C. L. R. Co. v. Georgia, Ashburn, Sylvester &c. R. Co., 91 Ga. App. 698 (87 SE2d 92); Pepsi-Cola Co. v. Wright, 187 Ga. 723 (2 SE2d 73). The proposal is so indefinite as to make it impossible for the court to determine what, if anything, was agreed upon, therefore rendering it impossible to determine whether there has been performance. Weill v. Brown, 197 Ga. 328, supra; Jones v. Ely, 95 Ga. 4, supra. The defendant, if liable, is liable only in quantum meruit for the services actually rendered. Jones v. Ely, supra; Mosteller v. Mashburn, 64 Ga. App. 92 (1) (12 SE2d 142).
3. The contract as alleged is too vague and indefinite to be enforceable, and the court erred in overruling the defendant's general demurrer.
Judgment reversed. Bell and Hall, JJ., concur.
Schwall & Heuett, Emory A. Schwall, contra.
Ernest D. Brookins, G. Ernest Tidwell, for plaintiff in error.
DECIDED MARCH 1, 1963.
Friday May 22 22:27 EDT


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