#### A. W. BILLINGS v. WILLIAM WILBY.

(Filed 22 May, 1918.)

1. Contracts — Telegrams—Offer and Acceptance — Request for Formal Contract.

A subcontractor for constructing a sewer telegraphed an offer to another, offering him a certain price per running foot to do the work, who unconditionally accepted by telegram, adding “Send contract signed at once”: Held,, the telegrams constituted a definite and binding contract, unaffected by the fact that the request for a more formal contract had not been complied with.

2. Same — Confirmation—Inquiry—Instructions—Trials.

Where a definite and binding contract for constructing a sewer ha» been made by offer and acceptance by telegraph, evidence that the contractor again telegraphed his acceptance with the further words, “Wire at once if you accept” my proposition, does not indicate his purpose to-abandon, any of his rights under his contract or to reopen the question; and where his evidence denies the sending of the later telegram, it is-proper, under any view of the evidence, as in this case, for the court to instruct the jury to answer the issue in the affirmative if they “believe the evidence and find the facts to be as testified by the witness and disclosed by the documents produced in evidence.”

ActioN, tried before Garter, J., at October Term, 1917, of Wilkes.

Tbe action was to recover damages for breach of an alleged contract conferring on plaintiff the right to construct the pipe line for a sewer from the new Federal building in Wilkesboro, N. 0. On denial of the contract and any and all liability thereunder, the jury rendered the following verdict:

1. Did defendant enter into a contract with plaintiff A. U. Billings-to employ said Billings to cut the ditch and lay the sewer line at the-price of 40 cents per running foot, as alleged in the complaint? Answer : “Yes.”

2. Was the plaintiff able, willing, and ready to do and perform the work according to contract? Answer: “Yes.”

3. Did defendant breach said contract as alleged in the complaint?' Answer: “Yes.”

4. What damages, if any, are plaintiff entitled to recover of defendant? Answer: “$220.”

Judgment on the verdict and defendant excepted and appealed, assigning for error chiefly a refusal to nonsuit plaintiff and the instruction of his Honor on the first issue as follows: “You are instructed that if you believe the evidence and find the facts to be .as testified by the witnesses- and described by the documents produced in evidence, you will answer the -first issue ‘Yes.’ ”

*572 Hayes & Jones for plaintiff.

Fairley & Ilendren for defendants.

Hoke, J.

There was evidence on tbe part of tbe plaintiff tending to show that plaintiff, a contractor of extended experience and engaged at tbe time in “grading off tbe foundation” for tbe new Federal building at "Wilkesboro, N. C., on 16 January, 1916, received a letter from William Wilby, defendant, then at Selma, Ala., and who bad tbe subcontract for tbe plumbing and laying tbe sewer line, inviting a proposition from plaintiff for cutting tbe ditch and laying tbe line, etc., according to survey and specifications which bad been already made by tbe government; that on 13 January, 1916, plaintiff replied by telegram from North Wilkesboro as follows:

> “Will put in sewer line according to specifications for $500, you furnish pipe and material North Wilkesboro. Wire at once if' you accept this. (Signed) A. U. BilliNGS.”

On same date defendant sent by wire a night letter as follows:

> “Forty cents per running foot is best I can do, I furnish pipe and you cement. I can do it myself for less than this, but want it put in before my man comes. If I cannot get it for tbe above amount, will wait and put it in myself. (Signed) William Wilby.”

To this plaintiff replied by telegram at 10:40 A. M., 14 January:

> “Night letter received. Will accept. Send-contract signed at once.”

That plaintiff was ready, able, and willing to do tbe work and bad tbe bands and tools there for the purpose, and on tbe night before be was to begin, which was several days after plaintiff’s last message, plaintiff received a telegram from defendant to tbe effect that be would advise plaintiff in a day or two about tbe work; that defendant never did advise plaintiff further about it, but soon thereafter undertook tbe work himself, etc.; that plaintiff’s damage in tbe loss of tbe contract was about $250.

On matters relevant to tbe issue, defendant introduced bis own deposition to tbe effect “that be was plumber resident in Selma, Ala., and bad a subcontract for installing tbe plumbing and sewer for tbe building, and, in addition to tbe telegrams already in evidence,, there was attached to bis’deposition two other telegrams in terms as follows, one purporting to be from plaintiff to defendant, dated 18 January, 3 P. M.:

> “I accept your sewer proposition. Wire at once if you accept mine. Start work at once in tbe morning. (Signed) A. U. BilliNGS.”

*573And another from' defendant to plaintiff:

> “Will advise yon witbin next few days regarding sewer proposition.

> (Signed) William: Wilby.”

In reference to tbe additional telegrams attached to the deposition and purporting to be from plaintiff, “I accept yonr sewer proposition. Wire at once if you accept mine. Start work in morning,” plaintiff recalled, testified that he did not send nor authorize any one else to send such a telegram. On perusal of this evidence, we are clearly of opinion that a definite contract to let the work in question was constituted between these parties by the telegram of plaintiff, dated 14 January, in reply to defendant’s night letter and in terms: “Night letter received; will accept. Send contract signed at once.” and this result. is not affected by the closing words of the message, “Send contract signed,” etc.

This, by correct interpretation, meaning merely that it was the desire and preference of the plaintiff that the agreement they had made should be written out and formally signed by the parties, and it is the recognized position here and elsewhere that, when the parties have entered into a valid and binding agreement, the contract will not be avoided because of their intent and purpose to have the same more formally drawn up and executed and which purpose was not carried out. Gooding v. Moore, 150 N. C., 195; Teal v. Templeton, 149 N. C., 32; Sanders v. Pottlizer Bros. Trust Co., 144 N. Y., 209; Clark on Contracts, 2 Ed., 29, and authorities cited.

In Moore's case, supra, it was held that “when parties to an oral contract contemplate a subsequent reducing of it to writing as a matter of convenience and prudence and not as a condition precedent, it is binding on them though their intent to formally express the agreement in writing was never carried out.”

And in 144 N. Y., supra, “If the correspondence and telegrams between the parties contain all the details of a contract, it is enforcible though they intended that their agreement should be formally expressed in a single paper which, when signed, should be the evidence of what already had been agreed upon.”

This being the correct position, we must approve his Honor’s charge on the first issue that, “if the jury believe the evidence and find the facts to be as testified by the witness and disclosed by the documents produced in evidence, you will answer the first issue 'Yes.’ ”

The parties having entered into definite contract by the message from the plaintiff of date 14 January, the additional message introduced by the defendant, even if genuine, evinces no purpose to abandon any rights he had acquired or to reopen the question of what had been done between them, and if it were otherwise, the charge of his Honor, when con*574sidered in reference to tbe testimony and tbe conditions presented, could •only mean .and was clearly intended to mean tbat if tbe parol evidence given by plaintiff to tbe effect tbat be bad never sent tbis telegram or authorized any one else to do so, should be accepted by tbe jury and tbe fact so found, such message should not be allowed to affect the determination of tbe issue.

On tbe record, we find no error in tbe charge or in tbe refusal of tbe motion to nonsuit, and tbe judgment below must be affirmed.

No error.