Opinion
42537.
SUBMITTED JANUARY 10, 1967.
DECIDED FEBRUARY 9, 1967.
Action on contract. Lumpkin Superior Court. Before Judge Kenyon.
Robinson, Thompson, Buice Harben, Sam A. Harben, Jr., for appellant.
Telford, Wayne Greer, Joe K. Telford, for appellees.
Where a writing does not purport to contain all the stipulations of the contract, evidence of the unwritten part, if it does not contradict the writing, is admissible for the purpose of establishing the contract in its entirety.
SUBMITTED JANUARY 10, 1967 — DECIDED FEBRUARY 9, 1967.
This is an action brought by an architect to recover architectural fees based on a contract between him and the defendant, a doctor, under which the plaintiff was employed to design a "medical clinic" or hospital for the defendant. The contract contained no written provision as to the limitation of construction cost. It was alleged that bids for the proposed construction had been received, the low bid being $112,427. The architect seeks to recover the balance owed him based on a percentage of that sum.
The defendant answered denying the plaintiff's right to recovery, alleging that the defendant had set a $70,000 limit on the cost of construction.
The plaintiff architect filed a motion for summary judgment on the grounds that there was no issue of fact regarding: (1) the execution of the contract, or its terms or validity; (2) the phase of the contract completed, that is, the receipt of bids and the amount due; (3) the fact that the defendant authorized the plaintiff to perform each phase of the contract and did not terminate the contract until after completion of the receipt of bids phase. The motion for summary judgment also alleged that, because of the parol evidence rule, the defendant's contention that the plaintiff agreed, prior to and at the time of the execution of the contract, to prepare the plans and specifications at a cost not in excess of $70,000 does not constitute a valid defense. The motion further alleged that the defendant's own testimony contradicts the existence of a subsequent agreement enforceable by law. The motion for summary judgment was denied, and the plaintiff appealed.
There are two questions for our determination. (1) Was testimony as to a fixed limit for cost of construction admissible? (2) If it was, did the deposition of the defendant contain sufficient facts to show there was an agreed fixed limit for cost of construction?
We recognize the rule that "parol evidence is inadmissible to contradict or vary the terms of a written agreement." Rogers v. Atkinson, 1 Ga. 12; Superior Pine Products Co. v. Williams, 214 Ga. 485 ( 106 S.E.2d 6). Here, however, there was no written provision as to a price limitation. Hence the evidence would not be an attempt to vary the plain and explicit provisions of a written contract as prohibited by the parol evidence rule. Instead, the principle would be applicable: "If the writing does not purport to contain all the stipulations of the contract, parol evidence shall be admissible to prove other portions thereof not inconsistent with the writing." Code § 38-504. Robinson v. Odom, 35 Ga. App. 262 ( 133 S.E. 53); North Ga. Lumber Co. v. Lawson, 40 Ga. App. 680 ( 150 S.E. 865); Shubert v. Speir, 201 Ga. 20 ( 38 S.E.2d 835); Thomas v. Eason, 208 Ga. 822 ( 69 S.E.2d 729); S. S. Builders v. Equitable Inv. Corp., 219 Ga. 557 ( 134 S.E.2d 777); Code § 20-704.
In Hite v. Aydlett, 192 N.C. 166 ( 134 S.E. 419), citing Feltham v. Sharp, 99 Ga. 260 ( 25 S.E. 619), the court held that in an action for services as an architect on a written contract, not definitely describing the plans to be drawn, if there was an additional oral agreement that the plans were to be drawn so that the work could be done for a specified cost, the plaintiff must show compliance with the condition, though the term was not omitted from the written contract by mutual mistake. See Wetzel v. Roberts, 296 Mich. 114 ( 295 N.W. 580); Zannoth v. Booth Radio Stations, 333 Mich. 233 ( 52 N.W.2d 678).
The contract, in this case, provided: "the architect shall consult with the owner to ascertain the requirements of the project and shall confirm such requirements to the owner." (Art. 3.1.1). Thus, the express terms of the instant contract clearly contemplated that the parties would arrive at the construction requirements, including any price limitation thereon, by an extrinsic contemporaneous or subsequent determination.
According to the defendant's testimony the architect was informed both at the time the contract was entered into and subsequently thereto as to a price limitation. At the time of execution the owner set $70,000 as the limit and then, later on, $80,000. While the defendant stated the architect did not specifically state that the project could be completed for $80,000, he testified the architect did not deny such could be accomplished or refuse to draw the plans. Instead, according to the defendant's deposition, the architect proceeded to draw plans and specifications and continued to follow the contractual schedule.
In this connection, the plaintiff contends that even if this be allowed as evidence of a subsequent agreement, there was no consideration, thus any such purported agreement was nugatory. We find no merit in this contention. "There is no question that through a course of dealing an entirely new verbal contract may be substituted for a valid written contract, and mutual acquiescence in such course of dealing may constitute sufficient consideration for the new contract. Hill v. Sterchi Bros. Stores, 50 Ga. App. 193 [177 S.E. 353]." Long Tobacco Harvesting Co. v. Brannen, 98 Ga. App. 142, 149 ( 105 S.E.2d 390); s.c., 99 Ga. App. 541 ( 109 S.E.2d 90).
In the present case there was consideration flowing to the architect since the owner might determine to abandon the project, in which case the architect would only receive compensation for services completed at that stage. While if the limit was complied with, then the project would continue and the architect would be entitled to additional compensation. Art. 8.4 of the contract provides: "If any work designed or specified by the architect during any phase of service is abandoned or suspended in whole or in part, the architect is to be paid for the service performed on account of it prior to receipt of written notice from the owner of such abandonment or suspension, together with reimbursements then due and any terminal expense resulting from abandonment or suspension for more than three months."
The defendant's testimony was sufficient to present a question for the jury whether there was an agreed limitation on the construction cost and, if so, whether the plaintiff complied with the same. The denial of the motion for summary judgment was not error.
Judgment affirmed. Frankum, P. J., and Deen, J., concur.