Lemoine v. Goudeau
Lemoine v. Goudeau
Opinion of the Court
This is a suit for damages for breach of contract. Plaintiff, a general contractor, contends that in preparing to submit a bid for the construction of an elementary school building in Marksville, Louisiana, he mailed cards to the defendant and several other electrical contractors for the purpose of having them submit bids to furnish the
At the letting the plaintiff learned that he was the lowest bidder of the general contractors with a figure of $231,738. Defendant was not present at the letting but plaintiff testified that he telephoned defendant that night and advised him that they were both the low bidders and that he wanted defendant to do the electrical work at the price submitted and that as soon as he signed the formal contract with the School Board he would prepare a written subcontract for signature by plaintiff and defendant as to the electrical work. Plaintiff signed the general contract on April 11, 1957 and he testified that a few days thereafter he talked to the defendant and defendant agreed to come by his office and sign the subcontract. However, when defendant went to plaintiff’s office, he stated that he had decided to quit the electrical contracting business and that he had obtained employment as an electrician in Alexandria and could not sign the contract. Approximately two months later plaintiff mailed to defendant the written subcontract demanding that he sign and return it but defendant still refused. Then plaintiff obtained new bids from the five electrical contractors who had originally submitted bids to him and accepted the lowest of $17,600 pursuant to which the work was completed. Plaintiff then brought this suit for the sum of $2,850 representing the difference between defendant’s bid and that of the electrical contractor who actually did the work.
The defendant and his witnesses testified to an entirely different version of the facts from that represented by the plaintiff and his witnesses as set forth above. Defendant contends that although he had been in the electrical contracting business for many years and had previously submitted many bids to plaintiff and had actually performed many electrical subcontracts for him, that shortly before the letting of this particular general contract defendant had become involved in financial difficulties and he and wife and sons had decided to quit the electrical contracting business. Defendant contends that on the insistence of plaintiff and purely because of the previous friendly relations between them he prepared for the plaintiff an estimate for use by the plaintiff in determining whether or not the electrical contract bidders were too high or too low. Defendant testified that on the night before the letting when he went to plaintiff’s office he made it clear to plaintiff that he was quitting the contracting business, that he could not do the work and that he was submitting only an estimate and not a bid. Furthermore, defendant denied that he received any telephone calls from plaintiff on the day of the letting in which plaintiff accepted defendant’s bid. Defendant also of course denied that he ever agreed to stop by plaintiff’s office and sign a written contract.
In addition to the evidence regarding this particular transaction, the plaintiff introduced the testimony of several contractors in an effort to show that it is customary in this type of business for the subcontractors to submit oral bids which are also accepted orally by the general contractors after the letting with the understanding that the subcontracts would be
“It is true, of course, that if parties, in contemplation of making a written contract, agree on some of the terms thereof, but intend later to settle other remaining points and to then execute a written evidence of their agreement or if parties, having agreed verbally on all points, further agree that no contract shall result until the total understanding is reduced to writing and signed, then the verbal agreements are not binding upon either, since it is the intention of both that the document to be later executed shall evidence the whole contract. Laroussini vs. Werlein, 52 La.Ann. 424, 27 So. 89, 78 Am.St.Rep. 350.
“But it is also well settled that, if all terms and conditions are agreed to and it is later suggested that the agreement be reduced to writing so that the contract will be less mutable and more easily proven, then the verbal contract is entirely binding, even though the written contract may not be later executed. Carlin v. Harding, 10 La. 223, 225.”
In the present case the lower court found in a brief written opinion that “ * * no contractual relationship was ever established between the parties to this proceeding.” It might be said that from this brief written holding we cannot determine whether the lower court found that no offer by defendant was proved or that no acceptance by plaintiff was proved or that the understanding of the parties was that neither would be bound until the subcontract was reduced to writing and signed. However, from a reading of the record, it is readily apparent that the principal factual issue is whether defendant submitted a bid in the nature of a continuing offer or whether he simply estimated the price in order that the plaintiff might determine whether or not the other electrical contract bidders were in line. In his testimony, the defendant takes no other position but simply that he was submitting an estimate and not a bid and the plaintiff, on the other hand, testified that defendant submitted a bona fide bid. This was the factual issue on which the lower court ruled that no contractual relationship was ever established. In so ruling the lower court necessarily found that plaintiff had failed to sustain his burden of proving that defendant had ever offered or agreed to do the work.
The testimony on this factual issue is in hopeless conflict. Plaintiff and his employee, Mr. Descant, testified positively that defendant came to their office the night before the letting and submitted a bid of $14,750. Mr. Herbert Armand, another employee of the plaintiff, was in the office that night but he did not hear the conversation between the plaintiff and defendant. On the other hand the defendant
From this conflicting testimony the lower court found that plaintiff had failed to sustain its burden of proving a contractual relationship existed between the parties. We are unable to say that the lower court was manifestly erroneous particularly in view of the well established jurisprudence that findings of fact by the lower court based on creditability of witness will not be disturbed on appeal, unless clearly erroneous. Roux v. Attardo, La.App., 93 So.2d 332, Jackson v. Young, La.App., 99 So.2d 400.
For the reasons hereinabove set forth the judgment of the lower court is affirmed. All costs of this appeal are assessed against the plaintiff.
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.