Opinion
20789.
ARGUED FEBRUARY 8, 1960.
DECIDED MAY 5, 1960. REHEARING DENIED MAY 18, 1960.
Specific performance, etc. Jefferson Superior Court. Before Judge Humphrey. November 16, 1959.
Marshall L. Fountain, for plaintiff in error.
Eugene Cook, Attorney-General, Paul Miller, E. J. Summerour, Carter Goode, Assistant Attorneys-General, Frank Hardeman, contra.
1. When the original prayers of the petition were stricken by an amendment which substituted prayers for relief other and substantially different from that originally prayed, the question as to whether the petition sets forth the right of the plaintiff to relief prayed by amendment becomes an open question.
2, 3. The rule is well established that, where one is engaged to render a service, in the absence of an agreement to the contrary, he is to be paid when the service is complete.
4. Where a creditor cashes and retains the proceeds of a voucher, issued to him by his debtor, upon which is the notation that the voucher is in full payment of the debt, there is complete accord and satisfaction that debars the creditor's right to maintain an action on the debt.
5. Where, as in this case, the evidence adduced on the trial shows no right of the plaintiff to relief in any form, or recovery in any amount, a verdict for the defendant should be directed.
ARGUED FEBRUARY 8, 1960 — DECIDED MAY 5, 1960 — REHEARING DENIED MAY 18, 1960.
Willie Marsh, the plaintiff in error, who was the plaintiff in the court below, and will be hereinafter referred to as plaintiff, filed a petition in the Superior Court of Jefferson County, Georgia, wherein he named State Highway Department of Georgia and the individual members of the Board of County Commissioners of Jefferson County as the defendants.
The petition as amended alleged that, about June 1956, the plaintiff deeded a right-of-way to the State Highway Department of Georgia, the same covering plaintiff's land, about one mile northeast of Louisville, Georgia, such deed having a recited consideration of $1.00 and the benefit to his property by the construction and maintenance of said road.
The amended petition further alleged that the defendants in securing the right-of-way deed represented to plaintiff that, as a part of the consideration of the deed conveyed to the State Highway Department, he would be paid for the land, shrubbery, and trees taken from him in the area described in the right-of-way deed, and that in addition, the defendants would move plaintiff's house back on his lot to a location desired by him so that it would not be right on the right-of-way and so he would have a front yard; or that the defendants would pay plaintiff to move his house to the location desired by him.
The petition as amended further alleged that the plaintiff, relying on the representation of the defendants, executed the right-of-way deed, and that he would not have executed the deed except in reliance upon such representations; that the defendants, in further pursuance of their agreement, on January 21, 1957, wrote plaintiff a letter which, omitting the formal parts, is quoted as follows: "With reference to the right-of-way deed to the State Highway Department: There has been set up for moving your house the sum of $1,000. If you are interested in moving your property at this price please bring this letter with you and contact Frank Hardeman within five (5) days from the date of this letter. You have the option of moving this property for the price named if you wish, and can have the work completed by or before the 8th day of February, 1957. If I do not hear from you within the next five (5) days the county will proceed with the work of moving this property."
There is attached to the petition a copy of the right-of-way deed as Exhibit A. This deed contains a clause that the lands conveyed are particularly described in a map and drawing of the said road in the office of the State Highway Department of Georgia, and that reference was made to that plat. The plat designated the lands conveyed by the deed as Parcel 16 of Project No. F-043-1 (7).
The amended petition alleged that plaintiff's house had not been moved; that plaintiff was not financially able to move the same; and prayed for a decree of specific performance of the contract, requiring the defendants to move the house or pay to plaintiff $1,000, and such other relief as the court deemed meet and proper in the premises.
This court held on February 6, 1959 ( State Highway Department v. Marsh, 214 Ga. 693, 107 S.E.2d 179), that the petition as amended alleged a cause of action.
On the second appearance in the trial court, the plaintiff further amended the petition by striking the prayers for the recovery of the $1,000, and for a decree of specific performance, and substituted the prayer that the plaintiff recover of the defendants the principal sum of $1,000, plus the interest thereon at the rate of 7% per annum from February 8, 1957, to date of judgment, and that the contract be reformed to require the defendants to give the plaintiff a reasonable number of days, not less than 18 to move his house.
The defendants filed separate answers, in which they admitted the existence of the letter shown as set out in the petition, and generally denied the remaining allegations of the petition. They further answered that, on February 28, 1957, the plaintiff was advised by letter that the previous letter dated January 21, 1957, was written in error, and that thereafter with full knowledge of the error, the plaintiff accepted Jefferson County Warrant No. 6490, dated February 21, 1957, in the sum of $178.33, with the warrant showing on its face that it covered payment in full for Parcel No. 16 on right-of-way Project No. F-043-1 (7).
The case came on for trial at the November 1959 term of the Superior Court of Jefferson County, Georgia. The plaintiff testified: "Mr. Hattaway, acting on behalf of the defendants, said the deed contained a one dollar consideration on a regular deed form. He said we would be paid for our land and our shrubbery, he didn't know what, he didn't say how much we would be paid. As to what the consideration for me signing that deed, well, he told me, he said, he was going to fix our highway better and would pay me for our land and shrubbery and also move my house back if I wanted to have it moved back. Right at that time he didn't tell me exactly how much it would cost to move it back, he probably didn't know. He said it would be set up to be moved. I could move it or they would move it, whichever I wanted to do." He testified that he received the letter set out in the petition from the Commissioners of Jefferson County, and in response to the same went to the office of Frank Hardeman, County Attorney, within five days; that Mr. Hardeman said the letter was a mistake, and informed him that the county would not pay him for moving his house.
The plaintiff testified in part that the defendants had made the agreement to move or pay for his house being moved as set out in the petition, and that this was a part of the consideration of the deed conveying the right-of-way. He testified that he received the letter written by Jefferson County Commissioners, and in response to the same went to the office of Frank Hardeman, county attorney. The plaintiff continued his testimony: "After that I didn't hear no more from them and a little later on they sent a warrant out, I believe it was, had something attached to it, what they was paying me for, the land and shrubbery and it amounted to $178.00 and something. That is the warrant but there was something attached to it, so much for the shrubbery and so much for the land, it was itemized out, so much for the shrubbery and so much for the land. It was attached to it when it was cashed, it is not attached to it now. . . Before January 26, 1957, I had been told by Mr. Hardeman we were not going to get the thousand dollars, he said it was a mistake. On February 28th, one month and two days after Mr. Hardeman told me I wasn't going to get the thousand dollars, I received and accepted this warrant for $178.33 marked `Payment for Parcel No. 6 in full' [evidently meaning parcel No. 16] but that thing paid in full for the shrubbery and the land, both were itemized out. That was after he told me he didn't think they would move the house." It further appeared from the plaintiff's evidence that his house at the time of the trial had not been moved.
The plaintiff introduced into evidence the deed to the right-of-way and the letter written him by the Commissioners of Jefferson County; the warrant, upon which appeared the notation "R/W Project No. F-043-1 (7) Payment for Parcel No. 16 in full," together with a plat and picture of his home.
Witnesses for the defendants who procured the deed to the right-of-way from the plaintiff admitted that they promised the plaintiff that the defendants would pay for the land conveyed and the shrubbery, but denied that the plaintiff was promised that the defendants would move his house or pay for moving it.
Mr. Hardeman, the county attorney, admitted writing the letter to the plaintiff containing the proposal that he had the option of moving his house for $1,000. He explained that the letter was written at the direction of the county commissioners, who were under the erroneous impression that the highway board had set up $1,000 and earmarked it for that purpose. The witness explained that subsequently to writing the letter he received further information that the highway department had not set up a fund to be used in moving the house. Mr. Hardeman further testified that he did not recall the plaintiff coming to his office, but that, if Mr. Marsh came to his office, he positively informed him that no sum had been set up for moving his house. The witness related that the warrant for $178.33 was issued to the plaintiff after the time the latter claimed to have visited his office, and that no itemized statement was attached to the warrant. The latter statement was corroborated by the testimony of the bank cashier who handled the warrant.
The defendants introduced in evidence the warrant above referred to and the plat showing that the tract conveyed by the plaintiff's deed was Parcel No. 16 on the right-of-way Project No. F-043-1 (7).
The trial judge directed a verdict in favor of the defendants. The plaintiff excepted.
1. The holding of this court on the former appearance of the case was an adjudication that the petition set forth the right of the plaintiff to some, but not necessarily all, of the relief prayed. Feeny Hay Co. v. Trenton Milling Co., 189 Ga. 109 (1) ( 5 S.E.2d 235).
When the original prayers of the petition were stricken by an amendment which substituted prayers for relief other and substantially different from that originally prayed, the question as to whether the petition set forth the right of the plaintiff to relief prayed by the amendment became an open question. Code § 81-1312; McKenzie v. Walker, 210 Ga. 189, 190 (3) ( 78 S.E.2d 486).
2. The petition as amended in a single sentence prayed that the plaintiff recover of the defendants the principal sum of $1,000 plus interest thereon at the rate of 7% per annum from February 8, 1957, to date of judgment, and that the contract be reformed to require the defendants to give the plaintiff a reasonable number of days, not less than 18, to move his house.
The contract to be "reformed" is not specifically referred to in the prayer, but evidently refers to the contract by the terms of which the plaintiff conveyed to the Highway Department the tract of land designated by the deed as Parcel No. 16 on right-of-way Project No. F-043-1 (7).
There was no contention by the plaintiff, and he offered no evidence, that in any part of the contract except in a letter written to him by the Commissioners of Jefferson County was there any allusion to paying him. $1,000 for moving his house. That letter, written on January 21, 1957, some seven months after the execution of the deed from the plaintiff to the Highway Department, informed the plaintiff that there had been set up to move his house the sum of $1,000. The letter made him the proposal: "If you are interested in moving your property at this price, please bring this letter with you and contact Frank Hardeman within five (5) days from the date of this letter. You have the option of moving this property for the price named if you wish, and you can have the work completed by or before the 8th day of February, 1957. If I do not hear from you within the next five (5) days, the county will proceed with the work of moving this property."
It will be noted that the proposal contained in the letter was not an offer to pay the plaintiff for moving the house until the work of moving it was fully performed. The rule is too well established to permit discussion that, where one is engaged to render a service, in the absence of an agreement to the contrary, he is to be paid when the service is complete. Luckie v. Max Wright, Inc., 90 Ga. App. 243, 246 ( 82 S.E.2d 660), holds: "Liens of laborers arise upon the completion of their contract of labor." A similar holding with reference to the time of paying for commodities purchased is in the case of Horkan v. Great American Indemnity Co., 211 Ga. 690, 691 (5) ( 88 S.E.2d 13) "A claim for the purchase price of building material, where the contract of sale has been fixed at a definite sum, is a liquidated demand; and, in the absence, as here, of proof of either contract or custom concerning payment, such purchase price is due when the material is delivered. . . Code § 57-110; Morris v. Root, 65 Ga. 686; McCarthy v. Nixon Grocery Co., 126 Ga. 762 ( 56 S.E. 72); Howard Supply Co. v. Bunn, 127 Ga. 663, 664 (4) ( 56 S.E. 757); Curtis v. College Park Lumber Co., 145 Ga. 601 (3) ( 89 S.E. 680); Rice-Stix Dry Goods Company v. Friedlander Brothers, 30 Ga. App. 312 ( 117 S.E. 762)."
3. From what is held in the preceding division of this opinion, it is obvious that the plaintiff failed to plead or prove the right to recover the $1,000 as compensation for moving his house. The defendants' evidence did not supply the deficiency in plaintiff's proof.
4. The evidence discloses that there was a controversy between the plaintiff and the defendants concerning the consideration for the plaintiff's deed to the highway department, by which was conveyed the tract designated by a plat made part of the deed as Parcel No. 16 on right-of-way Project No. F-043-1 (7).
The plaintiff contends that the real consideration for the deed was that he was to be paid the value of the land conveyed, certain shrubbery, and that the defendants move or pay for his house being moved farther from the highway. The defendants contend that they were to pay the value of the land and shrubbery, but denied that they had agreed to move or pay for moving the plaintiff's house, and denied that the consideration of the deed included the moving or the expense incident to moving the house.
On February 28, 1957, the county attorney, acting on behalf of the defendants, fully informed the plaintiff that the defendants denied liability for moving his house and would not pay for it being moved. Thereafter, the defendants issued to the plaintiff a warrant for $178.33, upon which was the notation "R/W Project No. F-043-1 (7) Payment for Parcel No. 16 in full." This warrant was cashed and the proceeds were retained by the plaintiff, Willie Marsh. None of these facts is contradicted. The defendants contend that this amounts to an accord and satisfaction. The plaintiff, however, testified that, when he received the warrant, there was attached to it another paper, the whereabouts of which is unknown, "So much for the shrubbery and so much for the land. It was itemized out . . . It was attached to that warrant when it came to me and it was attached when it left."
Assuming, as we must in considering a directed verdict, that there was such a paper attached to this warrant and that it contained the itemized account — this would in no way alter the fact that the plaintiff cashed and retained the proceeds of this warrant to pay for all costs incurred in connection with this particular parcel of land, which warrant had placed upon it the condition that it was in full payment of all obligations due by them to the plaintiff in connection with this project. By cashing and retaining the proceeds of the warrant, the plaintiff impliedly accepted the conditions placed upon the warrant. In Rivers v. Cole Corp., 209 Ga. 406 ( 73 S.E.2d 196), a check was mailed which contained the notation: "November rental, 1947, account paid in full." This was held to be an accord and satisfaction of all accounts due, even though the check contained the notation, "November rental, 1947."
5. The petition contained a prayer for general relief. The rule is as stated in Phillips v. Kelly, 176 Ga. 111, 113 ( 167 S.E. 281): "An equitable petition which contains a prayer for specific relief and for general relief will not, under the prayer for general relief, authorize the grant of any relief which is not germane to the prayer for specific relief."
However, in the instant case no evidence adduced on the trial showed the right of the plaintiff to relief in any form or authorized a recovery for him in any amount.
The plaintiff not being entitled to a verdict in his favor, the trial judge did not err in directing a verdict for the defendants.
Judgment affirmed. All the Justices concur.