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RUSSELL et al. v. CITY OF ATLANTA et al.
Action on contract. Fulton Civil Court. Before Judge Parker.
FELTON, Chief Judge.
Even though negotiations evidence willingness or determination to enter into a contract which was required to be in writing, a valid and binding written contract does not result if there is any essential part of the contract upon which the minds of the parties do not meet, and unless the terms and conditions are fully agreed upon in writing, a contract to enter into a contract in the future is not binding on the parties.
Mr. and Mrs. J. C. Russell, plaintiffs, filed suit against the City of Atlanta and H. H. Niebruegge in the Civil Court of Fulton County alleging breach of contract by the City of Atlanta. The plaintiffs allege that on or about October 23,1958, the defendant Neibruegge, acting within the scope of his authority as manager of the City Auditorium of Atlanta, rented to the plaintiffs a portion of the Auditorium for their use in conducting an antique show to be held on March 23, 1959, through March 26, 1959. The plaintiffs tendered to Neibruegge $400 as rent which was refused pending procurement of a license by the plaintiffs. Neibruegge wrote to the plaintiffs on October 27, 1958, confirming the dates and stated that a contract would be forwarded by March 1, 1959. On January 8, 1959, the plaintiffs, who at that time had spent considerable sums for promotion and advertising, were advised by Neibruegge that their "tentative booking" had been canceled. The plaintiffs attempted to have the cancellation reconsidered, but were advised by the Chairman of the Municipal Buildings that the committee had voted on January 19, 1959, to reaffirm the cancellation. Thereafter, the plaintiffs incurred additional expense in arranging for a substitute location. On February 16, 1959, the plaintiffs received a letter from the Chairman of the Municipal Buildings Committee stating that the committee had adopted a resolution to fulfill the commitment made to the plaintiffs. The plaintiffs allege that it was then too late to change their plans as they had already rented other space. The City of Atlanta filed its general demurrer to the petition which was sustained, and having been sustained, the petition was dismissed as to the defendant Niebruegge for want of jurisdiction, he being a resident of DeKalb County. To these rulings the plaintiffs except.
Section 45.4 of the Charter of The City of Atlanta provides: "The manager of the Municipal Auditorium shall sign all rental contracts in behalf of the city as its duly authorized agent for such purposes." Construing this provision of the city charter literally, we find it to mean that the Auditorium Manager has no authority to contract by parol; that any contract executed by him on behalf of the city must be in writing. It is contended by the plaintiff that the letter referred to in the petition is evidence of confirmation of the alleged parol contract. The manager had no authority to enter into a parol agreement binding the City of Atlanta, and the letter shows nothing more than a confirmation of dates discussed in connection with the proposed use of the auditorium for the antique show. At most, therefore, it is a letter showing intention of the parties to contract and is not confirmation of a contract, as evidenced by the sentence, "As agreed, we will send you a contract to cover on or about March 1, 1959." The case of Wells v. H. W. Lay & Co., 78 Ga. App. 364, 367 (50 S. E. 2d 755) controls the instant case. It was stated in that case: " 'If there was in fact any essential part of the contract upon which the minds of the parties had not met, or upon which there was not an agreement, even though the negotiations evidenced a complete willingness, or even an announced determination, to agree in the future upon such issues as might subsequently arise, it must still follow that a valid and binding contract was not made as of the earlier date.' National Bank of Kentucky v. Louisville Trust Co., 67 F. 2d 97, 102. 'Unless all the terms and conditions are agreed on, and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect.' 17 C. J. S. 394. See also Board of Drainage Commissioners v. Karr & Moore, 157 Ga. 284 (121 S. E. 298). 'An agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.' Rosenfield v. United States Trust Co., 290 Mass. 210 (195 N. E. 323, 122 A. L. R. 1210, 1216)." The plaintiffs also contend that the fact that they tendered rent strengthens their contention that a contract was entered into. We conclude that the refusal by the manager to accept tender was tantamount to his saying, "Wait until we are ready to enter into a contract." "To be enforceable the minds of the contracting parties must be in such agreement on the subject matter upon which the contract purports to operate that either party might support an action thereon." Etheridge v. Quality Hatchery Inc., 101 Ga. App. 76 (112 S. E. 2d 778). See also Code 20-108. It is clear to us that the defendants in this case could not have maintained an action based on contract against the plaintiffs under the facts alleged in the petition and conversely the plaintiffs cannot maintain an action against the defendants. Therefore, the court did not err in sus-
taining the general demurrer to the plaintiff's petition and in dismissing the case as to the codefendant.
Judgment affirmed. Nichols and Bell, JJ., concur.
J. C. Savage, Charles M. Lokey, contra.
Margaret Hopkins, James R. Venable, for plaintiffs in error.
Friday May 22 23:44 EDT

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