Herrman v. Conway

Full title: HERRMAN v. CONWAY

Court: Court of Appeals of Georgia

Date published: May 4, 1951

83 Ga. App. 888 (Ga. Ct. App. 1951)

65 S.E.2d 41

Opinion

33481.

DECIDED MAY 4, 1951. REHEARING DENIED MAY 18, 1951.

Complaint on contract; from Fulton Civil Court — Judge Etheridge. January 12, 1951.

Sams, Wotton Sams, for plaintiff in error.

John Brewer, Louis D. Yancey Jr., contra.

1. The petition stated a cause of action for breach of the contract between plaintiff and defendant, and the court did not err in overruling the general and special demurrers.

2. The damages alleged in the petition were not speculative and too remote to be legally recoverable.

DECIDED MAY 4, 1951. REHEARING DENIED MAY 18, 1951.

K. A. Conway sued L. Grant Herrman, doing business as Herrman Construction Company, for an alleged breach of a contract. In his amended petition plaintiff alleges substantially: that he was a qualified lathing and plastering contractor; that on October 17, 1949, defendant entered into a contract with the City of Atlanta for the construction of a building for the Atlanta Water Works; that a copy of such contract is attached to the petition as Exhibit A; that on August 1, 1950, petitioner entered into a verbal contract under the terms of which petitioner was to furnish all materials, labor, supervision and any and all other things necessary to and incident to the lathing and plastering work which defendant obligated himself to do under his contract with the City of Atlanta, plaintiff agreeing to comply with all the terms and conditions of said contract so far as lathing and plastering were concerned and further agreeing to follow the specifications of lathing and plastering as prepared by Tucker and Howell, Architects; that the agreed contract price for the lathing and plastering is $9,280.59; that in accordance with the contract between defendant and the city, said architects maintained a representative on the construction job to supervise construction and determine whether the construction was being done in compliance with the contract; that at the time the contract between plaintiff and defendant was entered into the frame of the building including the floor slabs, beams, etc., had already been completed and the inserts on which the metal laths were to be attached had already been inserted and defendant at the time he made the contract with plaintiff represented to plaintiff that the manner in which the inserts had been installed would be acceptable to the architect and to the owner; that plaintiff acting and relying on such representations by defendant began the performance of his obligations under the contract with defendant by purchasing necessary supplies and equipment for said work and by moving them to the premises where the work was to be done and by hiring laborers and craftsmen and having them being the actual work under said contract; that after plaintiff's employees had been engaged in the work contemplated by the contract between plaintiff and defendant, plaintiff was instructed by defendant and by a representative of the architect to discontinue work because the inserts to which the laths were to be attached were 12 inches on center instead of 6 inches on center as required by the lathing specifications; that since the inserts on which the laths were to be attached were twelve inches on center, the specifications requiring such inserts to be 6 inches on center could not have been complied with unless some adjustment had been made; that petitioner, defendant and the representative of the architect all agreed that an adjustment would have to be made before plaintiff could fully comply with his part of the contract with defendant, and petitioner discontinued work on said project until such time as the matter could be passed upon by the architect; that petitioner then withdrew his men from the job temporarily, expecting the matter to be corrected so that the specifications could be followed by petitioner and then to return and complete his contract with defendant; that on or about August 10, 1950, plaintiff went to the premises where he had begun the performance of his contract in order to determine if the agreed corrections had been made so that he could continue to perform his obligation under his contract with defendant, and plaintiff then and there discovered that defendant was proceeding with the lathing and plastering work himself contrary to his contract with plaintiff; that defendant then and there informed plaintiff that he had decided to do the lathing and plastering work himself, thereby renouncing and breaching his contract with petitioner after petitioner had partially performed his obligations thereunder with the knowledge, consent and approval of defendant by purchasing materials and supplies, moving them to the premises and actually starting the work as set forth; that defendant thereafter refused to allow plaintiff to enter upon said premises or to do anything further toward complying with his contract with defendant, although plaintiff was then and is now ready, willing and able to perform his obligations thereunder provided the necessary corrections are made in the location of the inserts as described above so as to allow plaintiff to perform his obligations in accordance with the specifications; that plaintiff has expended for labor and materials in contemplation and toward the performance of his contract with defendant the sum of $421.02, an itemized statement of which is attached; that all of said expenses are necessary to and incident to plaintiff's obligations under his contract with defendant; that had plaintiff been allowed by defendant to have completed his contract with defendant according to its terms, plaintiff's costs in labor and materials necessary for the completion of his part of the contract would have amounted to $6,527.79, an itemized statement of which is attached to the petition; that plaintiff has been damaged in certain particulars. To the amended petition the defendant renewed his general and special demurrers and filed additional demurrers. The court overruled the demurrers and the defendant excepted.

FELTON, J.

1. As special grounds 2, 3, 4, and 12 of the original demurrer and 5 and 8 of the renewed demurrer pertain to the merits of the petition, they will be considered with the general demurrer. Plaintiff in error contends that plaintiff is bound by all the conditions and provisions in the contract between defendant and the City of Atlanta and that one of the provisions of such contract is that final payment shall be due 30 days after substantial completion of the work provided the work be fully completed and the contract fully performed, and that approval of the architect shall be a condition precedent to payment under the contract, and contends that plaintiff has failed to show compliance with such condition precedent, that is, completion of the work and approval thereof by the architect. This contention is without merit for two reasons. First, the plaintiff alleges that he and defendant entered into a contract whereby plaintiff would provide all the material and labor necessary for the lathing and plastering defendant contracted with the City of Atlanta to do. No other reference is made to the contract between defendant and the city. Construed most strongly against him, plaintiff's petition does not show that any provision in the contract between defendant and the city pertaining to the completion of the work and approval thereof by the architect before payment therefor was incorporated in the contract between plaintiff and defendant. Such provision referred only to the owner, City of Atlanta, and the contractor, defendant, and in no way affected the plaintiff, subcontractor, without an adoption or incorporation thereof into the contract between plaintiff and defendant. Second, even if plaintiff was bound by such provision of the contract between defendant and the city, such provision has no bearing on the present case as plaintiff is suing for damages for breach of the contract and not for money due under the contract. Plaintiff bases his cause of action on the very act which prevented him from complying with the condition precedent set out in the contract between defendant and the City of Atlanta. Contrary to plaintiff in error's contention, there was a meeting of the minds between plaintiff and defendant sufficient to constitute a contract between them and this is evidenced by the fact that plaintiff actually performed part of the work contracted to be done with the knowledge and consent of defendant.

2. Plaintiff in error contends that the damages sought by plaintiff are speculative and too remote to be legally recoverable. Plaintiff alleges his damages to be the difference between the contract price of $9280.59 and the cost to complete the work under the contract of $6527.79, which cost he itemizes, plus the sum of $421.02 expended for material and labor up to the time of the alleged breach, which final figure is $3173,82, judgment for which he prays. Plaintiff alleges the correct measure of damages under the facts of the case. Campbell Co. v. Mion Bros., 6 Ga. App. 134 (3) ( 64 S.E. 571); Black v. Automatic Sprinkler Co., 35 Ga. App. 8 ( 131 S.E. 543). While plaintiff should have amended the figure set out in paragraph 19 of the amended petition to show the credit alleged in paragraph 17-A, he does show such credit in his amended prayer. However, although this point is argued in plaintiff in error's brief, there is no demurrer to paragraph 19 specifically pointing out such defect and we make no ruling thereon.

The remaining grounds of the special demurrer are without merit.

The court did not err in overruling the general and special grounds of the demurrer.

Judgment affirmed. Worrill, J., concurs. Sutton, C.J., concurs in the judgment.