Opinion
37015.
DECIDED JANUARY 23, 1958.
Action on contract. Fulton Civil Court. Before Judge Etheridge. November 13, 1957.
Edward E. Carter, William R. Harp, for plaintiff in error.
Haas, Holland Blackshear, M. H. Blackshear, Jr., contra.
1. A petition alleging that the defendant for a stated sum agreed to repair the plaintiff's automobile in a satisfactory and workmanlike manner, that the plaintiff has paid the full contract price, but the repairs have never been completed, sets out a cause of action for damages.
2. Although time is of the essence of a contract, this provision may be waived by the agreement or conduct of the parties. Where, however, the time of performance is extended because of the defendant's promise to have the repairs completed by a set future date, and the repairs are never completed, either on the date set or thereafter, there is no waiver of the right to seek damages for breach of the contract as to the time and manner of performance.
DECIDED JANUARY 23, 1958.
McClellan Berston filed an action for damages in the Civil Court of Fulton County against Steve Futo, doing business as Futo's Body Automotive Service. As amended the petition alleges that the plaintiff entered into a contract with the defendant to repair his automobile for the sum of $1,237.02 in consideration of which he would repair and put the automobile in new condition, perform specified repairs in a good and workmanlike manner satisfactory to the plaintiff, and that time was of the essence of the contract, the repairs to be completed on or about April 1, 1954. On April 1, 1954, the repairs were not completed. On June 14, in reliance on the defendant's promise of completion within 10 days, the plaintiff paid him in full the contract price. The defendant was aware that the plaintiff would be residing out of the State and that it would be necessary for him to make delivery as promised. On June 8, 1954, the defendant informed the plaintiff that he could not make delivery because the back light had been broken by agents of the defendant, and the parties then agreed delivery would be consummated on or before August. In August, 1954, the plaintiff returned from Delaware to Atlanta, Georgia, and was informed that the repairs had not been completed because the defendant had broken the windshield of the plaintiff's automobile. It was then agreed that the repairs would be completed by September. In September the plaintiff again returned from Delaware to Atlanta in anticipation of delivery but found the automobile had not been repaired in compliance with the agreement as to certain specified defects, and refused to accept delivery. It was then agreed that the defendant would complete the repairs by October 15, and the plaintiff then informed the defendant that delivery would have to be made on that date as it would be impossible for him to return to Atlanta after that date. On October 15, plaintiff was again advised that the repairs had not been completed and it was agreed that they would be completed by December 1. On December 1, the plaintiff contacted the defendant by long distance, was informed that the car was ready for delivery, and in reliance thereon came to Atlanta to pick it up. The defendant knew the plaintiff would rely and act on his representation. When the plaintiff arrived the defendant again informed him the repairs were not completed, this time because his employees had stripped the gears of the automobile while working on it. In this trip to Atlanta for the purpose of reclaiming his vehicle the plaintiff's expenses amounted to $101.04. At that time the plaintiff and the defendant agreed that the car would be delivered by May 1, 1955. In May, 1955, the plaintiff again returned to Atlanta and found the repairs had not been made according to contract in certain specified particulars. The repairs were never completed in a good and workmanlike manner. Possession of the automobile was delivered to him on February 18, 1956, and its reasonable market value at that time was $1,000. He sues for $1,700, the alleged depreciation in market value of the car caused by the defendant's breach of contract in failing to perform in the manner and within the time specified, and for special damages of $101.04, being the expenses of one trip to Atlanta in reliance upon the defendant's promise of delivery at that time.
A general demurrer was sustained, and this judgment is assigned as error.
1. Counsel for the defendant contends that a reading of the petition shows only an alleged breach of contract resulting from late performance, and that by the subsequent agreements between the parties late performance was waived. The petition shows more, however, for it alleges not only late performance but failure to perform, for there is a positive allegation that from April 1, 1954, to February 18, 1956, when delivery was finally made, the defendant never did make certain described repairs as contracted. In Trustees of the Monroe Female University v. Broadfield, 30 Ga. 1 (1, 2), it was held: "When carpenters agree to do work, according to specifications, in a neat and workman-like manner, and fail, not only to comply with the contract, but do the work unskillfully and negligently, they are liable to respond in damages to the employer for all injuries resulting from the breach of the contract. The fact that the employer accepts the work and agrees to pay for it according to contract does not relieve the carpenters from such liability, unless the employer, at the time, knows of the deficiencies or breach of contract, and expressly agrees to waive his rights under the same, which must affirmatively appear." See also Colt Co. v. Hiland, 35 Ga. App. 550 (3) ( 134 S.E. 142); Cannon v. Hunt, 116 Ga. 452 (5) ( 42 S.E. 734). The fact that the plaintiff finally took delivery of the automobile does not absolve the defendant from performing the contract as agreed. According to the allegations of the petition the defendant agreed to repair the automobile in a satisfactory and workmanlike manner and place it in new condition. Since a petition is never subject to general demurrer where it sets out a cause of action for any part of the amount sued for, the general demurrer was erroneously sustained for this reason.
2. This case was apparently decided, and the briefs of counsel for both parties are devoted to, the question of whether or not the petition states a cause of action for a breach of contract resulting from delay of performance. Because of its importance to a proper trial of the action this question is given consideration. Even though time is of the essence of a contract, it may be waived by the agreement or conduct of the parties, and one who agrees to extend the time of performance cannot, either during the period of the extension or later after performance has been accepted, either claim that the contract was rescinded by the breach or recover damages for the delay. For example, in Greene County Oil Co. v. McCaw Mfg. Co., 9 Ga. App. 39 ( 70 S.E. 201), the defendant, who accepted for resale a late delivery of a tank of oil which was itself satisfactory, but which had depreciated in price during the intervening time, had no right to offset against the contract price of the oil his damages resulting in decreased profits due to delay in delivery. In Westmoreland v. Gainesville Northwestern Ry. Co., 27 Ga. App. 176 ( 107 S.E. 891), a plaintiff who gave the railroad company a right-of-way conditioned upon the defendant putting up certain stopgaps or fencing, had no cause of action for damages after the work was satisfactorily installed and accepted by him, although the defendant breached the contract to the plaintiff's damage by failing to make installation within the time limited. This case holds (headnote 1) that "performance within [the stipulated] time is waived by B if after such failure [to perform] he urges A to perform and A thereupon does perform, and the performance is accepted as satisfactory." (Italics ours.) In Alabama Construction Co. v. Continental Car Equipment Co., 131 Ga. 365, 370 ( 62 S.E. 160) it is held that if there is a consideration for waiving damages for breach of that part of a contract relating to time of delivery, an express or implied agreement to that effect will be binding on the parties. "If the party who is not in default, by his acts or conduct, induces the one who is in default, before performance has been had, to perform in a certain manner, generally he will be estopped from claiming damages." P. 370. That case held that a letter from the vendee to the vendor after the latter had made a late shipment of the commodity stating that he would remit upon arrival would not estop the vendee from claiming damages for delay because the evidence failed to show that the vendor had acted upon it. The rule was stated (p. 370): "If there is a consideration for waiving damages, an express or implied agreement to that effect is valid and will be binding." In Gude Walker v. Bailey Co., 4 Ga. App. 226, 230 ( 61 S.E. 135), the plaintiff vendor agreed to deliver to the defendant certain lumber, the time element being of particular importance. After several delays, during which the vendee threatened the vendor with an action for damages, the vendee wrote, "If you will get us this material promptly, however, there will be no question about damages . . ., and we trust you will do so." P. 230. The material was not delivered promptly, but after long delay it was delivered and accepted. The court held that the letter was no more than an offer to waive damages for delay on condition; that the consideration contemplated was subsequent prompt delivery, that, unless the consideration was complied with, the promise to waive damages was nudum pactum, and that "an offer by the promisee to waive damages resulting from the breach of the term of a contract as to the time of performance, on condition that the other party thereafter make prompt delivery, becomes a valid agreement only upon compliance with the condition." (Headnote 2a.) Again, in Van Winkle Co. v. Wilkins, 81 Ga. 93 ( 7 S.E. 644, 12 Am. St. R. 299) it was held that where sawmill equipment was ordered for delivery at a stipulated time and warranted as first class, receiving and installing the equipment on the part of the defendant did not bar its defenses to an action for the purchase price either that the equipment was not as ordered or that the defendant had been damaged by delay in receiving it.
Under that view of all these cases which is most favorable to the defendant, it is obvious that this much, at least, is true: where time is of the essence of the contract, an offer or an agreement to extend the time conditioned upon the defendant performing is not binding on the plaintiff where the defendant in fact fails to perform. Each alleged agreement for extension of time in this petition is conditioned upon the defendant (a) meeting the new deadline, and (b) satisfactorily completing the original contract. And as to each new agreement, the defendant failed in both particulars to fulfill the condition which it assumed. Had the work, as finally delivered to the plaintiff, been satisfactory and the plaintiff accepted it as such, perhaps he would be estopped to complain now. Such a case is not presented, however, by the plaintiff's petition. He says in effect that the defendant has never completed his contract; that six times he extended the time of performance on condition that the work be completed, and that the consideration for these extensions of time has wholly failed. Under such circumstances the plaintiff is entitled to such damages as he may be able to prove proximately resulted from the defendant's failure to comply with the terms of the contract.
The trial court erred in sustaining the general demurrer to the petition.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.