Volume 67 — Washington Reports, Second Series

<bold>[1] Pleading — Principal and Agent — Undisclosed Principal —</bold> <bold>Joinder as Party.</bold> An undisclosed principal is only a permissive party defendant when a plaintiff sues the agent, since there is no rule which requires a plaintiff to accept the credit of an undisclosed principal and to release the agent who appeared to be a principal; and, an action cannot be dismissed for failure to join such a principal, since under RPPP 19(a) and (b) a plaintiff cannot be required to join a permissive party but only indispensable or necessary parties. <bold>[2] Judgment — Summary Judgment — Entered Upon Election.</bold> It was not a "free" election when the trial court allowed appellant's counsel to elect between accepting a summary judgment or trial of certain issues, where the court's offer of trial was conditioned on payment of attorney's fees if the issues were decided adversely to counsel, together with the fact that the court had forwarned earlier of its decision on the issues contrary to counsel. <bold>[3] Same — Pleading — Motion for Summary Judgment — Bad Faith</bold> <bold>Shown.</bold> Counsel fees for presenting a motion for summary judgment in bad faith (RPPP 56(g)) may be imposed upon a party up to and including the time the trial court determines the affidavit was made in bad faith, but not subsequent thereto, since the purpose of the rule is to afford the trial court an opportunity to determine what the bad faith of one party had already cost the opposing party. <bold>[4] Pleading — Appeal and Error — Review — Fees Awarded for Bad</bold> <bold>Faith Motion.</bold> An award of attorneys' fees under RPPP 56(g) is interlocutory and not appealable until the final judgment in the case; however, where a trial court determines an affidavit countering a motion for summary judgment was made in bad faith, although raising a material issue, and states it will deny the motion only<page_number>Page 203</page_number> if the opposing affiant agrees to pay attorneys' fees should this issue be decided adversely at trial, appeal can be taken from the order granting the motion for summary judgment following failure to secure this agreement, even though the issue of counsel fees is involved, because to hold otherwise would force the trial of the issue under the impression that the opposing affiant had agreed to payment of the counsel fees. [1] See Am. Jur., Parties (1st ed. § 35).

<bold>[1] Trial — Taking Case From Jury — Sufficiency of Evidence.</bold> A motion for nonsuit requires the court to view the opposing party's evidence and all reasonable inferences therefrom in a perspective most favorable to him. <bold>[2] Contracts — Formation — Implied and Express Contracts.</bold> An implied contract has no distinction from an express or written contract in terms of its legal consequences, differing only in the mode of its proof, since both words and acts can support an imputation to a person of a contractual intention corresponding to them, and a contractual promise will be found to exist if they show an undertaking, however expressed, that something shall happen, or that something shall not happen, in the future. <bold>[3] Same — Formation — Essential Elements — Mechanical</bold> <bold>Subcontract.</bold> In a subcontract for the mechanical work of a construction contract, the manner and time of payment, time for completion of various portions of the work, and provisions for penalties, bonding, etc., are normally essential elements upon which agreement is necessary; and where only the price of such a subcontract has been agreed upon, the court will not supply "reasonable" requirements as to the other provisions, since the role of the court is not that of contract maker, but merely that of giving legal effect to bargained-for contractual relations. <bold>[4] Same — Formation — Subsequent Formal Contract.</bold> Preliminary negotiations made with a view to a subsequent contractual formalization will not themselves be held to constitute a contract between the parties unless the subject matter has been agreed upon; the terms are all stated in the informal negotiations, so that the parties understand that the final writing shall contain these terms and no others; and the parties intended a binding agreement prior to the time of the signing and delivery of a formal contract. <bold>[5] Same — Formation — Conduct of Parties — Use of Contract</bold> <bold>Bid.</bold> The mere use of a subcontractor's bid figures by the general contractor in preparing his bid does not constitute an acceptance of the subcontractor's offer. <bold>[6] Same — Formation — Custom and Usage — Existence of</bold> <bold>Contract.</bold> Business practice and custom may be used to aid the court in determining whether a contract ever came into existence, as well as in the interpretation of existing contracts; however, when its use is directed at the contract's existence, there must be independent evidence indicating an essentially complete agreement, since the role of practice<page_number>Page 515</page_number> and custom is not to fill in all the essential terms of an incomplete agreement. [4] See Ann. 122 A.L.R. 1217; Am.Jur.2d, Contracts § 28.

<bold>[1] Negligence — Instructions — Insertion of Improper Issue.</bold> In an action for damages where the issue of contributory negligence had been stricken by order of the court, it was prejudicial error to instruct the jury on sudden emergency caused "by the negligence of another," since the jury could infer from such language that the negligence referred to was that of the plaintiff, and consider an issue previously stricken by the court. <bold>[2] Automobiles — Negligence — Sudden Emergency — Evidence.</bold> In an action for damages arising from a rear-end automobile collision during a severe snow storm, an instruction on sudden emergency on the theory that the plaintiff's car was suddenly obscured from the defendant's view as he approached from the rear, was not supported by the evidence where the defendant's own testimony was to the effect that the road was continuously obscured from his view for a substantial distance prior to his seeing the plaintiff's car. <bold>[3] Same — Negligence — Lack of Valid Driver's License —</bold> <bold>Materiality.</bold> In an action for damages arising from an automobile collision, the issue of whether the defendant had a valid driver's license at the time of the collision is not material unless it is shown that there is a causal relation between the defendant's failure to have such a license and his asserted acts of negligence. <bold>[4] Courts — Juvenile Court — Surrender of Driver's License —</bold> <bold>Effect.</bold> A juvenile court is not a criminal court, and an appearance in such court wherein a person surrenders his driver's license does not constitute a criminal conviction. <bold>[5] Appeal and Error — Assignments of Error — Reference to</bold> <bold>Record.</bold> Where an appellant fails to indicate the portion of the record to which he refers in his arguments supporting his assignments of error, as required by ROA 42(f), the Supreme Court will not search the record for applicable portions thereof. <bold>[6] Witnesses — Cross-examination — Texts or Treatises.</bold> In cross-examining a medical witness as to his opinion or knowledge of a medical treatise or article, the burden is upon the cross-examiner to establish that the treatise or article is authoritative. <bold>[7] Negligence — Damages — Instructions — Sufficiency of</bold> <bold>Evidence.</bold> In an action for personal injuries, testimony that it would be some period of time before the disability of one of the plaintiffs could be evaluated, was sufficient to permit the jury to consider the<page_number>Page 718</page_number> issue of such plaintiff's future loss of earnings; testimony that a plaintiff would suffer recurring pain in the future, would not support an award for permanent partial disability; and testimony that a plaintiff would suffer pain "from now on," was sufficient to support an instruction on life expectancy in connection with a possible award for future pain and suffering. <bold>[8] Same — Damages — Instructions — "Reward" Instead of</bold> <bold>"Award."</bold> The use of the word "reward" instead of the word "award" in an instruction removing the issue of a plaintiff's permanent partial disability was improper, but not prejudicial in the particular context in which it appeared in the instruction. [3] See Ann. 16 A.L.R. 1117, 163 A.L.R. 1387; Am.Jur.2d, Automobiles and Highway Traffic § 367.

<bold>[1] Contracts — Consideration — Failure of Agreed Basis — Effect</bold> <bold>— Good Faith.</bold> A contractual agreement that the consideration flowing to one of the parties shall be based upon certain measurements and gradings of the other, will not be determinative of the actual obligations of the parties where the measurement and grading, and the record keeping in connection therewith, is so negligently done that the basis for compensation under the contract is destroyed, since there is an implied covenant of good faith and fair dealing in every contract which obligates each party to cooperate with the other so that he may obtain the full benefit of performance. [1] See Am.Jur.2d, Contracts § 100.

<bold>[1] New Trial — Review — Orders Granting and Denying.</bold> A trial court has wide discretion in the matter of granting or denying a new trial, except where its order is predicated upon an erroneous ruling. <bold>[2] Same — Grounds — Instructions — Exception — Necessity.</bold> An error in refusing or giving an instruction will not support an order granting a new trial if no exception was taken at the time the ruling was made. <bold>[3] Trial — Instructions — Sufficiency — Theory of Case.</bold> Where an instruction is sufficiently broad to allow a party to adequately argue his theory of the case to the jury, it is not error for the court to fail to give a more specific instruction. <bold>[4] New Trial — Review — Other Grounds Presented to Trial</bold> <bold>Court.</bold> Where a new trial is granted on specific grounds, the Supreme Court may consider any grounds or reasons properly presented to the trial court by the party seeking to sustain the new trial, and may affirm the new trial on such other grounds even if the trial court did not cite such grounds as the reason for granting the new trial. <bold>[5] Negligence — Volenti Non Fit Injuria — Instructions —</bold> <bold>Evidence in Support.</bold> It is not error for a trial court to include in its statement of contentions the fact that volenti non fit injuria was pleaded as a defense, even though there was no evidence to support it. <bold>[6] Same — Volenti Non Fit Injuria — Instructions — Inclusion of</bold> <bold>Issue.</bold> An instruction in a negligence action to the effect that the jury should find for the defendant if a hazard "was obvious and reasonably apparent or should have been observed by the plaintiff in the exercise of ordinary care," was not an instruction on volenti non fit injuria, but an instruction placing a duty of reasonable care on the plaintiff. [5] See Am. Jur., Negligence (1st ed. § 59).<page_number>Page 942</page_number>