Aspironal Laboratories Inc. v. Rosenblatt

Jenkins, P. J. 1. Strictly speaking, a unilateral contract is one in ■which the obligation incurred rests upon only one of the contracting parties, for the reason that the consideration of the other party has already been fully executed; this, as distinguished from a bilateral contract, in which are embraced reciprocal duties and obligations; but the term unilateral is frequently and commonly employed to express a lack of mutuality. 2. The obligation of every bilateral contract, in order to be enforceable, must have the element of mutuality; and it is lacking when only one of the contracting parties is bound to perform and the agreement could not be enforced as against the other. 3. Where the contract is such as under the statute of frauds must be in writing in order to be binding, and there is nothing to take it out of the provisions of that statute, the writing, in order to evidence mutuality and consequently to be binding, must be “signed by the party sought to be charged therewith, or by some person by him lawfully authorized” (Civil Code, 1910, § 3222), and must also be signed or otherwise accepted by the opposite party. Generally speaking, “the object of a signature is to show mutuality or assent, but these facts may be shown in other ways.” 13 C. J. 305, § 128. Thus, where the person sought to be charged has signed, and acceptance by the opposite party can be inferred by part performance of an entire contract or otherwise, the agreement is not necessarily rendered inoperative by the fact that both have not signed (Linton v. Williams, 25 Ga. 391; Groover v. Warfield, 50 Ga. 644; Fraser v. Jarrett, 153 Ga. 441, 110 S. E. 483; Perry v. Paschal, 103 Ga. 134 (1), 137, 29 S. E. 703; Mendel v. Converse, 30 Ga. App. 549, 552 (10), 118 S. E. 586), unless the instrument itself, as a condition to the validity of the agreement, that requires that both shall sign; in which event, in the absence of such mutual signatures, the contract as such can not be enforced, but the parties can only be held liable according to its terms, to the extent that it has been actually executed. Atlanta Buggy Co. v. Hess Spring & Axle Co., 124 Ga. 338 (52 S. E. 613, 4 L. R. A. (N. S.) 431). 4. The contract here sued on related to an entire shipment and had been more than two thirds performed by each of the parties thereto. Consequently there could be no question that the agreement signed by the defendant had been accepted by the plaintiff. Nor does it lack mutuality because of the provision therein that the seller shall not be bound to “tender deliveries.” This provision, when construed with its context, does not mean that the seller need not deliver the goods contracted to be sold, but that if the buyer shall fail to order out the goods during the intervals specified by the agreement, the seller shall not be required to make tender thereof. Nor is the contract wanting in mutuality for [256] the other reasons urged. While a contract may be “highly protective of the seller without a corresponding protection to the purchaser, it is not lacking in mutuality, and therefore not void upon its face. Where the essentials of a contract are present and no rule of law appears to have been transgressed, the courts are powerless to interfere merely because in the respect indicated the agreement may be a harsh one.” Palmer-Murphey Co. v. Kimbrough-Veazey Co., 29 Ga. App. 721, 722 (116 S. E. 542). The judge of the superior court did not err in sustaining the certiorari. Decided August 30, 1925. Judgment affirmed. Stephens and Bell, JJ., coneur. W. J. Laney, for plaintiff in error. Carl Lancaster, Walter McDaniel, contra.