NUCLEAR ASSURANCE CORPORATION v. Dames & Moore

Clark, Judge. Dames & Moore, an international consulting engineering firm with expertise in the applied earth sciences, sued Nuclear Assurance Corporation, a concern which serves the nuclear electric power industry. That suit was dismissed under a document dated September 27,1974 entitled "Memorandum Agreement.” The instant suit, the second between these parties, was thereafter instituted for a balance allegedly remaining unpaid under that document. The testimony of executives from the two concerns indicated a difference in their understanding as to the obligations assumed by each under the executed memorandum agreement. Documents and correspondence were introduced to support the respective conclusions. At the conclusion of the trial the court announced it would rule for the plaintiff based upon the provisions of the memorandum agreement. These views were subsequently incorporated into a judgment for plaintiff including the necessary findings of fact and conclusions of law. Our review leads us to affirmance of this judgment as the contract was properly construed below. In the opening paragraphs it specified that the defendant agreed to pay $83,712.25 in stated installments which was contrary to the defendant’s contention that this figure was to serve as the basis for further negotiation. We also agree with the trial court’s ruling adverse to defendant’s interpretation of the final paragraph which dealt with a proposal for use of Nuclear’s services. Defendant argued this constituted a firm retainer agreement for a period of 36 months at $1,000 per month. The trial judge noted that the language used in this paragraph contemplated the parties would act at a future date to spell out any retainer arrangements. The pertinent sentence in this paragraph which supports the trial judge reads: "The parties are presently negotiating an agreement in this regard and it is contemplated *689 between the parties that an agreement will be reached whereby Dames & Moore shall retain the professional services of Nuclear Assurance for a period of thirty-six (36) months, at a minimum fee of $1,000.00 per month, said period to commence November 1,1974.” This portion was only an agreement to seek to agree in the future since the negotiators did not at that point in time have a meeting of minds on the subject. See 1 Corbin on Contracts § 29 captioned "Partial Agreements 'Contract to Make a Contract.’ ” Moreover, defendant was not in a position to claim credit for a 36-months period where, if the contract had been completed, it was to contain a right of termination by either party "giving 30 days written notice.” Argued February 2, 1976 Decided February 17, 1976. Roland P. Smith, for appellant. Peek, Arnold, Whaley & Cate, William H. Whaley, Ross Arnold, for appellee. Judgment affirmed. Bell, C. J., and Stolz, J., concur.