Opinion
43175.
ARGUED NOVEMBER 9, 1967.
DECIDED JANUARY 5, 1968. REHEARING DENIED JANUARY 30, 1968.
Action on contract. Fulton Civil Court. Before Judge Webb.
Smith, Cohen, Ringel, Kohler, Martin Lowe, Ralph H. Witt, for appellant.
Neely, Freeman Hawkins, Paul M. Hawkins, Thomas H. Harper, Jr., for appellee.
1. The effect of a judicial act and not the judge's characterization of it determines its nature as "a judgment" as distinguished from "an order of the court."
2. There is no consideration for a promise to pay additional compensation for services which the promise is obligated to perform under the terms of a previous contract.
ARGUED NOVEMBER 9, 1967 — DECIDED JANUARY 5, 1968 — REHEARING DENIED JANUARY 30, 1968.
Ralph Gough, d/b/a Gough Construction Company, filed suit against Robert Chuckrow Construction Company, Inc., on an alleged oral contract. In addition to facts necessary to show the court's jurisdiction the petition alleged: "3. On April 30, 1965, your petitioner entered into an oral contract with the defendant to undertake certain construction at Kinney Shoe Store at 2260 Lawrenceville Highway, DeKalb County, Georgia. 4. On May 14, 1965, an accident occurred at the partially completed building causing certain of the trusses already erected to collapse. 5. Subsequent to the occurrence and specifically on the morning of May 17, 1965, the general superintendent of defendant, one Ed Spencer, agreed with your petitioner on the job site itself for your petitioner to remove the fallen trusses, rebuild and re-erect them and submit a bill for this work, none of the work covered by this agreement being work required of your petitioner in the original contract. 6. Your petitioner undertook to do and did this work as agreed, performing services and furnishing material of the reasonable value of $2,985, said work being completed on May 30, 1965, and the bill for which was presented to defendant on October 9, 1965, which amount your petitioner has demanded and payment has been refused, and for which amount your petitioner sues."
The answer denied the allegations of the petition except those relative to the court's jurisdiction and further averred: "Defendant shows that the contract described in Paragraph 3 of the petition herein is embodied in a writing signed by both of the parties hereto and contained provisions, covenants and conditions governing all of the work performed by defendant on the construction identified in Paragraph 3 of the petition herein and such contract will speak for itself as to the terms, covenants and conditions thereof. For further answer to the petition herein, defendant shows that it has paid to plaintiff all sums due to plaintiff for all work done and materials furnished by plaintiff on the construction described in paragraph 3 of the petition herein and plaintiff has accepted and acknowledged payment in full of all such sums for all such work done and material furnished."
The evidence adduced on the trial of this case on May 2, 1967, shows that the plaintiff was a subcontractor of the defendant on a construction job known as the Kinney Shoe Store, having agreed with the defendant in a written contract dated April 30, 1965, to perform carpentry work required by the drawings and specifications for that building. A part of the carpentry work was the assembly and erection of wooden trusses which supported the roof deck on the building. By the express provisions of the written contract, Gough undertook to "provide all labor and materials, scaffolding, tools, equipment and all other things necessary for the prosecution and completion of the work in strict accordance with the drawings and specifications and job control chart. . ." The specifications, described in the contract, stated that the work the plaintiff undertook to complete included the trusses and provided that the plaintiff was to assemble the trusses on the ground in a jig complete, hoist the trusses into place, bridge or block the trusses, and secure the trusses in accordance with the plans. The written contract contained the following provisions: "Subcontractor hereby assumes entire responsibility and liability for any and all damage or injury of any kind or nature whatsoever. . . to all property caused by, resulting from, arising out of, or occurring in connection with the execution of the work provided for in this contract." Gough's employees had erected approximately 38 of the trusses on May 15, 1965, when 32 of them fell off the building. On the following Monday, Gough was told by the defendant's representative to remove the fallen trusses from the building. disassemble, inspect, rebuild, and re-erect them. He proceeded to remove the trusses that fell, inspect, rebuild where necessary and re-erect them. He also erected the balance of the trusses required to complete the roof truss structure and completed the carpentry work on the project. He was paid by the defendant all sums owed under the written contract of April 30, 1965, together with all charges for extra work except for the costs incurred by him in connection with the fallen trusses. On direct examination, Gough stated he had a contract for furnishing the labor and the equipment for the erection of the roof. On cross examination, he testified that the trusses fell; that it was his responsibility under the contract of April 30, 1965, to erect the trusses; that only his employees and no others were on top of the trusses at the time of the collapse; that he did not know what caused the trusses to fall; that the fallen trusses were rubbish or trash; that he agreed with the method used to erect the trusses; that he removed the fallen trusses, re-assembled and re-erected them essentially the same way they were erected the first time, and completed the erection of the trusses immediately thereafter.
According to the testimony of the plaintiff, when he completed the repair and replacement of the trusses, he had installed the number of trusses he was required to install under the terms of the written contract dated April 30, 1965.
Upon the close of the evidence the defendant, appellant here, moved for a directed verdict on the ground that the evidence submitted demanded such a verdict. The motion was overruled. The jury rendered a verdict for the plaintiff. Within the time provided by law, the defendant filed a motion for a judgment notwithstanding the verdict on the same ground on which it had previously moved for a directed verdict. This motion was overruled, and the case is here for review.
1. The appellee moves to dismiss the appeal on the ground that the notice of appeal is taken from a judgment entered on August 2, 1967, and that the record discloses there was no judgment rendered on that date; that the only ruling of the trial court made on August 2, 1967, was an order overruling the appellant's motion for a judgment notwithstanding the verdict. This court has held that such a ruling is a judgment from which a direct appeal will lie. Shetzen v. C. G. Aycock Realty Co., 93 Ga. App. 477, 479 ( 92 S.E.2d 114) contains the pronouncement: "The ruling on the motion for a judgment notwithstanding the verdict was not a final judgment but was a judgment form which a direct bill of exceptions will lie because it was one which would have been final if the ruling had been as contended for by the plaintiff in error. Code § 6-701." See Allen v. Bobo, 215 Ga. 707 ( 113 S.E.2d 138).
That the judgment overruling the motion in the present case recites that it is an order is of no legal consequence. The effect of a judicial act and not the judge's characterization of it determines its nature as "a judgment" as distinguished from "an order of the court." The motion to dismiss is without merit.
2. Where in a suit upon a contract the evidence submitted on behalf of the parties affirmatively reveals the plaintiff is not entitled to recover, the defendant's motion for a judgment notwithstanding the verdict is the appropriate remedy to set the verdict aside.
The question on which the decision of the present case turns is whether the evidence adduced upon the trial showed the parol contract sued upon to be an enforceable agreement. Assent of the parties to the terms of the contract and a consideration for the performance of the same are essential requisites to its validity. Where either of these elements is lacking the contract is not binding or enforceable. Code § 20-107.
The plaintiff, under the terms of the parol agreement, assumed no obligation or duty that he was not bound to perform under the written contract he had previously entered into with the defendant. Under both the written contract and the oral agreement the defendant assumed the obligation to erect and properly place the same number of trusses to support the decking for the roof of the building.
The Supreme Court held in Johnson v. Hinson, 188 Ga. 639, 644 ( 4 S.E.2d 561): "An agreement on the part of one to do what he is already legally bound to do is not a sufficient consideration for the promise of another." A similar pronouncement of the principle is found in Willingham Sash c. Co. v. Drew, 117 Ga. 850 (1, 2) ( 45 S.E. 237): "Where one undertakes to perform for another service for labor for a given sum any amount paid in excess of that sum, not based upon a new consideration, is a mere gratuity. . . A employed B to build a house for the sum of $1,400. A paid the $1,400 before the completion of the house; and it becoming apparent that B would be unable to comply with the contract without suffering loss, B was told by A to estimate what sum would be necessary to complete the building, and upon being informed that $350 would be required, B was told to complete the building and this amount would be paid in addition. Under this latter arrangement B was to do only what was contemplated by the original contract. After the $1,400 had been paid and before the payment of the $350, A was served with a summons of garnishment in a suit against B, and judgment was rendered in favor of the garnishee. Held: (1) That the agreement to pay the additional sum of $350 was a nudum pactum. (2) That at the time of the service of the summons of garnishment the relation of debtor and creditor did not exist between A and B."
It should be noted that the cause of the trusses' falling was unexplained and there was no evidence that their collapse was due to defendant's fault or any deficiency in the specifications as to how the trusses were to be erected.
The evidence having demanded a finding that there was no consideration for the parol agreement, the trial judge erred in overruling the motion for judgment notwithstanding the verdict.
Judgment reversed. Jordan, P. J., and Deen, J., concur.