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A contract implied in fact can be found by looking to the surrounding facts of the parties' dealings. Offer and acceptance need not be identifiable and the moment of formation need not be pinpointed.
Appellee Ingrassia Construction Company, Inc. obtained a telephone bid from appellant Walsh Steel Service Company pertaining to steel and wire mesh work. A price was quoted in the bid for both the reinforcing steel and for the wire mesh and it delineated certain of the subcontractor's duties. Ingrassia's agent, Herbert Johnson, was in communication with appellant Walsh between March and June of 1977 concerning the pending job. Johnson testified that an agreement was reached during this period in accordance with the terms of the verbal telephoned bid. Subsequently, Walsh was informed that Ingrassia would not provide certain equipment, and as a result of this controversy, Walsh refused to perform. Ingrassia contended that Walsh's refusal to perform put Walsh in breach of contract. Walsh, on the other hand, maintained that a binding contract was never formed. At trial, the jury returned a verdict for Ingrassia, for $12,750.00. Walsh’s motion for a Judgment N.O.V. was denied and the present appeal followed.
Was there a binding contract between appellee and appellant, thereby warranting the jury verdict for appellee and the denial of judgment n.o.v. against appellant?
On appeal, the court affirmed the trial court's order denying the motion for judgment n.o.v. The court found that there was evidence of a completed agreement based on the telephone conversations between appellant and appellee's agent. The court found that there was evidence of an implied in fact contract. The court held that there was ample evidence from which a reasonable jury could find the existence of a contract, and the court would not retry the case and invade the jury's traditional fact-finding function. The court found that a reasonable jury could conclude that either an oral contract existed, based on the telephone conversations between appellee's agent and appellant, or that a contract implied in fact arose, evidenced by the course of events and their behavior over the period of time from the bid, to appellant's refusal to perform.