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B. L. MONTAGUE CO., INC. v. SOMERS et al.
36346.
Action on contract. Before Judge Humphrey. Toombs Superior Court. June 9, 1956.
FELTON, C. J.
The instrument which the plaintiff contends was an acceptance of its offer was actually a counteroffer which was accepted by the plaintiff; therefore, the counteroffer became the contract between the parties and the plaintiff was bound by the terms thereof. The court did not err in directing the verdict for the defendants and in denying the plaintiff's motion for new trial.
B. L. Montague Company, Inc., sued W. Coite Somers and W. C. Somers, Jr., doing business as the Coite Somers Company, for a certain sum alleged due it under a contract with the defendants. Two thousand dollars of the sum sued for represented the balance due to the plaintiff for its performance of the contract, and the remainder of the sum sued for represented State sales and use tax due the State of Georgia as the result of the construction work which was the subject of the contract. The defendants paid into court the $2,000 representing the balance due under the contract for materials furnished and services rendered and the case went to trial on the issue of the use and sales tax. At the close of the plaintiff's evidence the court directed a verdict for the defendants. The plaintiff's motion for new trial based on the ground that the court erred in directing a verdict was denied and it excepts.
The plaintiff contends that it submitted to the defendants an offer containing certain stipulations and specifications for certain construction work on which the defendants were general contractors and that the defendants accepted such offer and became bound by the terms thereof. The defendants in turn contend that the instrument which the plaintiff contends was an acceptance of the plaintiff's offer was not an acceptance but was a counteroffer which the plaintiff accepted and which, therefore, became the contract between the parties. The plaintiff's offer was as follows: "Date: 24 December 1952 277-S Contract No. Contractor: Coite-Somers Company, Vidalia, Georgia Job Name: Heating Plant and Whse. Job Location: Hunter AFB Savannah, Ga. Owner: Corps of Engineers Architect: Corps of Engineers In accordance with conditions listed below, we agree to furnish the following material:
Structural Steel to include:
A. Anchor bolts
B. Base plates and columns
C. Beams and purlins
D. Canopy framing
E. All necessary clip angles and connection bolts
Misc. Steel and Iron to include:
A. Pipe rails
B. Fire door jamb angles
C. Channel door frames
D. Angles and blots for wood bumpers
E. Expansion joints
F. Ceiling hatches
G. Pipe barricades
H. Lintels Above structural steel items consisting of about 460 tons to be erected in place under this contract. All misc. steel and iron items to be placed by others. All foundations and anchor bolts to be set by others. Anchor bolts to be furnished by BLM Co.
To the firm of The Coite Somers Co. Located At Vidalia, Georgia
For the sum of $110,000.00
Prices are F.O.B. Job Site, erection as outlined above
Conditions: 1. No State, Federal or local taxes are included in this contract price.
2. No back charges are authorized against this contract, unless approved in writing in advance by B. L. Montague Co.
3. Invoices are due and payable on 10th. of month following shipment and are to be paid in full, unless exceptions in writing are approved by the B. L. Montague Co.
4. No items furnished on this contract except those listed above.
Accepted ________________________ B. L. Montague Co. /s/ James
D. Riel
______________________________ James D. Diel"
East Liberty Street Project Whse & Htg plant Terms: Reg.
Ship To
The Coite Somers Company Hunter Field Savannah, Georgia right is reserved to cancel order below
Bid Item 3A Warehouse (Bays 1,2,3) and Heating Plant to conform to architect's drawings 26-02-02 1 thru 12; 33-02-03 1 thru 42; 33-02-04-01, all dated 10/20/52; addenda 1 & 2 dated 12/1/52 & 12/8/52 Furnish all miscellaneous steel and iron $110,000.00
Above structural steel items consisting of approximately 460 tons to be erected in place under this contract. All miscellaneous steel and iron items to be placed by others. All foundations and anchor bolts to be set by others. Anchor bolts to be furnished
by B. L. Montague Co., Inc.
Purchase Order No. 5005 FG
Description of Controlled Material Alloted here by 1953 1953
Item 14 220xOT 240OT Priority rating DO-C2 vised CMP Regu- C.MP Regulation 6
/s/ William C. Somers, Jr. Partner Delivery required Allot. for use in filling this order in
Accepted: B. L. Montague erection By: Gen. Mgr. ered by February 15, 1953
Invoices must state order walls and beams connecting these ery 1953 and erection started Bal de-
at Vidalia, Georgia 1953
The Coite Somers Company
By /s/ Coite Somers"
The issue involved in this case is whether or not the defendants were bound by condition one of the plaintiff's offer which read, "No State, Federal or local taxes are included in this contract price." If the defendants' alleged counteroffer was in reality an acceptance of the plaintiff's offer, then the plaintiff would have been entitled to recover. If as contended by the defendants the alleged acceptance was not an acceptance but a counteroffer which was accepted by the plaintiff, then the plaintiff was not entitled to recover.
The defendants' instrument was not an acceptance of the plaintiff's offer but was a counteroffer to the plaintiff which was accepted by the plaintiff and which became the contract between the parties. Estes Lumber Co. v. Palmyra Yellow Pine Co., 29 Ga. App. 15 (113 S. E. 821). All acceptance of an offer must be unequivocal, unconditional and without variance of any sort; otherwise, there is no meeting of minds and assent thereto necessary to form a contract. Robinson v. Weller, 81 Ga. 704 (8 S. E. 447); Phinizy v. Bush, 129 Ga. 479 (4) (59 S. E. 259); Dillin-Morris Co. v. Gillespie, 15 Ga. App. 210 (1) (82 S. E. 812); Good Roads Machinery Co. v. Neal & Son, 21 Ga. App. 160 (1, 2) (93 S. E. 1018). There are several instances of variance between the plaintiff's offer and the defendants' counteroffer. The plaintiff's offer did not contain a delivery date or any reference to the time element involved in the performance of the proposed contracts, whereas the defendants' counteroffer contained the provision, "Date required for delivery and erection Anchor bolts and misc. all delivered by February 15, 1953. Columns at exterior walls and fire walls and beams connecting these columns all delivered by 15 March 1953 and erection started. Bal. delivered and erect. started 15 May 1953." The plaintiff's offer described the contract price as follows: "For the sum of $110,000", whereas in the defendants' counteroffer it was described: "For lump sum price of $110,000." The counteroffer contained no reference to State, Federal or local taxes. Further, toward the bottom of the plaintiff's offer was the following: "Accepted --------" The defendants did not sign the plaintiff's offer after the word "accepted." However, toward the bottom of the defendants' counteroffer was the following: "Accepted: B. L. Montague Co. Inc. By: Gen. Mgr. Date: 1-10-53."
The law places upon the purchaser the duty to pay the State sales tax and places upon the seller the duty to collect such taxes. There is nothing in the law which prevents the seller and purchaser from including such tax in the total contract price. In the plaintiff's offer the sales tax was expressly not included in the contract. However, the defendants' counteroffer did not mention sales tax specifically but provided that the work would be performed for the "lump sum price of $110,000."
We think that the only reasonable construction that could be placed on the counteroffer under the circumstances was that the sales tax would be included in the contract price of $110,000.
App.] JANUARY TERM, 1957. 865
The plaintiff in error contends that the court erred in directing a verdict rather than granting a nonsuit. The defendants' defense was based solely on the fact that their instrument did not amount to an acceptance of the plaintiff's offer but showed on its face that it was a counteroffer which was accepted by the plaintiff. The defendants could not have introduced any evidence to sustain their defense other than their counteroffer. Since the plaintiff introduced its offer and the defendants' counteroffer into evidence and since the only issue involved was the construction of the two instruments, which was a question of law (Code 20-701), and since no question of fact was presented, the court did not err in directing a verdict rather than granting a nonsuit.
The motion to dismiss the writ of error is denied.
The court did not err in denying the motion for new trial.
Judgment affirmed. Quillian and Nichols, JJ., concur.
T. Ross Sharpe, Alvin L. Layne, contra.
Wm. T. Darby, Nat O. Carter, for plaintiff in error.
DECIDED JANUARY 8, 1957.
Saturday May 23 01:37 EDT


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