Howell v. CM Allen & Co.

174 S.E.2d 55 (1970)

Bill HOWELL, T/A Bill Howell Construction Company v. C. M. ALLEN & COMPANY.

No. 708DC163.

Court of Appeals of North Carolina.

May 27, 1970.

*56 Sasser, Duke & Brown, by J. Thomas Brown, Jr., Goldsboro, for plaintiff appellee.

Dees, Dees, Smith & Powell, by William L. Powell, Jr. Goldsboro, for defendant appellant.

HEDRICK, Judge.

The appellee assigns as error the court's overruling his motions for judgment as of nonsuit. All the evidence considered in its light most favorable to the plaintiff tended to show that in the month of January 1966 the defendant was engaged in placing underground conduit lines for Southern Bell in the City of Goldsboro, North Carolina, and that the plaintiff went to the site of the job and discussed with one E. O. Bradshaw, an employee of the defendant, the possibility that the plaintiff might bid on some concrete work. Bradshaw informed the plaintiff that Barrus Construction Company of Kinston, North Carolina, was also bidding on the job, but that the plaintiff could submit a proposal. The plaintiff testified that in consequence of his conversation with Bradshaw he did, in fact, submit to Bradshaw a written proposal to install the concrete for a sidewalk from Ash Street to William Street five feet in width, four inches thick and six inches thick in the driveways with a test strength of 3,000 pounds. The plaintiff further testified that in the afternoon after he had submitted the written proposal to Bradshaw he was advised that he did have the contract, and that he was the low man, and that he was to begin work immediately cutting out the driveways. The plaintiff testified that after he and his men had worked 3½ days he was told by one Williams, Secretary and General Superintendent for C. M. Allen & Company, to stop work because the defendant had decided to award the contract to Barrus Construction Company.

The written proposal described by the plaintiff was not introduced into evidence nor does the record disclose any evidence as to any agreement between the parties regarding the price to be paid by the defendant for the work to be done by the plaintiff. "The general rule is that price or compensation is an essential ingredient of every contract for the transfer of property or rights therein or for the rendering of services and must be definite and certain or capable of being ascertained from the contract itself. * * *

"An agreement which does not specify the price or any method for determining it, but which leaves the price for future determination and agreement of the parties, is not binding." 17 Am.Jur.2d, Contracts, § 82.

In order for a valid contract to exist the parties must assent to the same thing in the same sense, and their minds must meet as to all the terms. Goeckel v. Stokely, 236 N.C. 604, 73 S.E.2d 618 (1952). "An offer must be definite and complete, and a mere proposal intended to open negotiations which contain no definite terms but refers to contingencies to be worked out cannot constitute the basis of a contract, even though accepted." 2 Strong, N.C.Index 2d, Contracts, § 2; Yeager v. Dobbins, 252 N.C. 824, 114 S.E.2d 820 (1960). The plaintiff contends in his complaint that he is entitled to recover damages because the defendant breached an express contract. The plaintiff's evidence tends to show only that he negotiated with one of the defendant's employees to do some concrete work. The evidence is silent as to the terms of the alleged express contract. The evidence does not disclose with any certainty what the plaintiff *57 agreed to do for the defendant, or what the defendant agreed to pay the plaintiff. The plaintiff's evidence fails to show the existence of a binding contract between the parties; hence, the defendant's motion for judgment as of nonsuit ought to have been allowed. Leffew v. Orrell, 7 N.C.App. 333, 172 S.E.2d 243 (1970).

Reversed.

BROCK and BRITT, JJ., concur.