Opinion
33878.
DECIDED MARCH 7, 1952.
Complaint; from Fulton Civil Court — Judge Parker. October 9, 1951.
Northcutt Edwards, for plaintiff.
Wesley G. Bailey, Herman Wheelus, for defendants.
The petition, alleging that the defendants had contracted with the plaintiff to build and install cabinets in the plaintiff's kitchen in a workmanlike manner, and that the plaintiff paid the contract price of the cabinets to the defendants in reliance upon the defendants' promise to remedy the defects in the construction of the cabinets pointed out to the defendants before the payment was made and on the following day, set out a cause of action for breach of the contract, both as to the defects known at the time of payment and as to those subsequently discovered, and did not seek a recovery of damages not sanctioned by law. Accordingly, the court erred in sustaining the defendants' general demurrer and in dismissing the petition.
DECIDED MARCH 7, 1952.
Robert L. McKee sued Hardy L. Wheelus Sr. and Hardy L. Wheelus Jr., trading as Wheelus Cabinet Works, and in his petition made substantially the following allegations: On December 1, 1950, the plaintiff employed the defendants to construct and install kitchen cabinets in his home. The agreement was in parol, and by its terms the defendants agreed to build and install cabinets on two walls in the plaintiff's kitchen, together with an additional portion as a divider between the kitchen and the breakfast room. The defendants agreed to build and install said cabinets in such manner as to fit the following: (a) the plaintiff's stove, the dimensions of which had previously been given to the defendants; (b) the plaintiff's dishwasher, which the defendants were to measure before building said cabinets; (c) all other places that kitchen cabinets properly measured and constructed would normally fit, according to the custom of the trade. The defendants were to build and install said cabinets in a good and workmanlike manner. The defendants built and installed said cabinets in the plaintiff's kitchen on January 5, 1951, and late in the afternoon of that date, about dusk, advised the plaintiff's wife that they had completed their work. At that time of day the plaintiff's wife was unable to see all defects in the defendants' workmanship but observed and pointed out to the defendants the following defects: (a) the cabinets did not fit around the window; and (b) at least one half of the formica surface on the top of the base cabinets and on the splash back of the base cabinets was not stuck to the top and back of the cabinets. The defendants promised the plaintiff's wife to correct the defects which she pointed out to them, and relying on this promise the plaintiff's wife paid the defendants $422.75, which was the contract price of the job. The plaintiff was and had been busy pouring concrete at the time his wife inspected the work and made the payment, and had no knowledge of the defects in the defendants' workmanship and knew nothing of said payment by his wife until after the payment had been made. The payment was by a check signed by the plaintiff's wife and drawn on the joint bank account of the plaintiff and his wife. On the day following, the plaintiff discovered many other defects in the work in addition to those already discovered by his wife. The wall cabinet over the stove was more than three inches off-center. Half of the formica on the cabinet tops and splash backs was buckled, loose and unsightly, and none of the formica was properly installed. The cabinet shelving was improperly constructed. The bull-nose unit did not have a recessed toe space as did the rest of the cabinets. The wall cabinets were too long and the door casing had been notched out so that the cabinets would get up to the wall. The front of the cabinets was not flush with the front of the dishwasher as ordered. The top of the cabinets was not flush with the top of said dishwasher, nor did the cabinets fit up to the dishwasher as ordered. For these reasons, said cabinets were not constructed or installed in a good and workmanlike manner and were totally worthless. The plaintiff immediately notified the defendants of these defects in workmanship, and the defendants promised to remedy the defects, but went from January 5, 1951, until May 7, 1951, without doing so. On or about January 20, 1951, the defendants took down certain doors from the wall cabinets, which were a part of said job, promising to fix and align the doors, but failed to do so. Although a reasonable time expired to remedy said defects, the defendants never aligned or fixed said doors and never corrected the other defects in said cabinet work. The defendants' promises to remedy the defects in said cabinets were made with the intention not to perform same and the defects were never remedied. On May 4, 1951, the plaintiff notified the defendants that the plaintiff considered said cabinets worthless and that the plaintiff would remove them on May 7, 1951, and place them in a building in the rear of the plaintiff's residence where the defendants might pick them up, which the plaintiff did on May 7, 1951, and he continues to hold the cabinets there subject to removal by the defendants. To repair the damage occasioned by the failure of the defendants to build and install in a workmanlike manner the cabinets which the defendants agreed to build and install, was worth $501.07, and it cost the plaintiff this amount to have the work done over at moderate charges, for which damages the plaintiff brings this action. The cabinets placed by the defendants on said premises were of such inferior workmanship that they were totally worthless and could not have been made into a first-class cabinet job without completely tearing them out and having other cabinets built and installed, which the plaintiff had to do. No part of the amount paid to the defendants has been refunded by the defendants or by either of them, and the plaintiff is without fault.
The defendants demurred on the ground that the allegations of the petition set forth no cause of action, and the court sustained this ground of the demurrer and dismissed the petition. The plaintiff excepted to that judgment.
Under the alleged parol contract, the defendants agreed to construct and install in a workmanlike manner cabinets on two walls of the plaintiff's kitchen and a "bull-nose" or dividing counter to separate a breakfast room from the kitchen. The wall cabinets were to fit the plaintiff's stove, dishwasher, and other places not specified. The price was to be $422.75, which the plaintiff paid through his wife on completion of the job. It was alleged that the payment was made in reliance upon the defendants' promise to repair the defects which the plaintiff's wife then discovered and pointed out to the defendants, namely, that the cabinets did not fit around the window and that the formica surfacing on top of the base cabinets did not properly adhere thereto.
Under these facts, the plaintiff was entitled to some relief. Payment alone does not, as a matter of law, constitute acceptance of performance under a building contract, amounting to a waiver of undiscovered defects in such performance. 9 Am. Jur. 41, Building Contracts, § 54. The rule that the purchaser must exercise caution in detecting defects is confined to cases of implied warranty. Cook v. Finch, 117 Ga. 541 ( 44 S.E. 95). Where the builder has promised to remedy defects as a result of his workmanship actually known to the owner and pointed out to the builder, acceptance of the work by the owner and payment therefor in reliance upon the builder's promise to remedy the defects does not amount to a waiver of performance with regard to the known defects or to the defects subsequently discovered. Kendrick v. White, 75 Ga. App. 307 ( 43 S.E.2d 285); Small v. Lee Bros., 4 Ga. App. 395 ( 61 S.E. 831).
The plaintiff was entitled to have what he contracted for or its equivalent, and what that equivalent is depends upon the circumstances of the case. Where a substantial part of the work would have to be changed and rebuilt in order for the work to be done according to the contract, the owner would be entitled to recover the difference between the value of the work as done and the value of the work as it should have been done, provided that the builder acted in good faith. Small v. Lee Bros., 4 Ga. App. 395 (supra); Kendrick v. White, 75 Ga. App. 307 (supra). On the other hand, if the builder's breach of the contract is intentional and in bad faith, or if the defects may be remedied without what would amount to destroying the work already done, the owner is entitled to recover the cost of making the work conform to that contracted for. Dornblatt v. Carlton, 10 Ga. App. 741 ( 73 S.E. 1085); Trustees of Monroe Female University v. Broadfield, 30 Ga. 1. Under the alleged facts, the petition does not seek a recovery of damages not sanctioned by law, as contended by the defendant in error.
The court erred in sustaining the defendants' general demurrer and in dismissing the petition.
Judgment reversed. Felton and Worrill, JJ., concur.