DECIDED MAY 17, 1957.
Action on contract. Before Judge Smith. Americus City Court. January 28, 1957.
Smith Undercofler, for plaintiff in error.
Fort Fort, contra.
1. The amended petition alleged a cause of action in contract.
2. Mr. Lucas was not a necessary party to the action since the partial release of the contract operated to discharge him. Code § 20-905.
3. The special demurrer calling for the plaintiff to set out the electrical specifications under which he performed the contract sued on was without merit because the plaintiff alleged that a copy of these specifications was not in his possession and was either in the possession of the defendant or was available to him.
4. The plaintiff did not seek to recover on quantum merit after alleging an express contract.
DECIDED MAY 17, 1957.
Roy McCook, doing business as McCook Electric Company, sued Don Farr on a contract. The plaintiff's amended petition stated the following facts: The defendant contracted with Bill Lucas, a general contractor, for the building of the defendant's home. This contract called for electrical wiring and installation of electrical equipment according to certain specifications. Through a bid, Bill Lucas entered into a contract with the plaintiff whereby the plaintiff was to do the electrical work required by the original electrical specifications for the sum of $1,798. Just before the plaintiff was to begin work on the house and at a meeting among the plaintiff, the defendant and Mr. Lucas, the defendant presented a new set of electrical specifications that he desired to be used in the installation of the wiring and electrical equipment in the construction of his home. The plaintiff being an experienced electrical contractor observed from such new specifications that the electrical work called for by these new specifications would cost a much greater amount than the $1,798 required under the old electrical specifications. The defendant expressed his desire to substitute the new electrical specifications for the old and it was mutually agreed by the plaintiff, the defendant and Mr. Lucas that Mr. Lucas would "step out of the picture" as to the electrical work to be done and that the plaintiff and the defendant could contract between themselves as to the new specifications and that he would credit to that new contract the $1,798 required under the old specifications and under his general contract. It was further agreed between the plaintiff and the defendant that if the plaintiff would perform the work required by the new specifications, the defendant would pay to the plaintiff the difference between $1,798 and the amount required to install the electrical wiring and equipment pursuant to the new specifications. The three parties all agreed to the terms set out above. The plaintiff proceeded to perform the electrical work called for under the new specifications and when such work had been completed, Mr. Lucas paid to the plaintiff the $1,798 as agreed. The cost of the electrical work completed under the new specifications was $4,293.27. After he had been paid the sum of $1,798 by Lucas, the plaintiff submitted to the defendant a bill for the balance amounting to $2,495.27. On the presentation of this bill to the defendant, the defendant paid the plaintiff the sum of $200 and stated that he would pay the balance as soon as an inspection was had by an engineer. The defendant had the electrical work inspected and it met all the requirements of the new specifications. After the inspection was completed, the plaintiff submitted to the defendant a bill for the balance due and the defendant promised to pay the plaintiff within a few weeks, but such payment has never been made. Attached to the amended petition was a very detailed account of the materials furnished and labor performed under the new specifications.
The defendant's general and special demurrers to the amended petition were overruled, and he excepts.
1. Without delving into the niceties of definition whether the action of the parties was a compound novation, a partial abandonment or a partial rescission and new contract, the legal effect of the parties' action is clear. We think that the effect of such action was a partial rescission of the general contract between the defendant and Lucas and a new contract as to the electrical work between the plaintiff and the defendant. There can be a partial rescission of a contract by mutual assent of the parties. Rushton v. Hall Brown Woodworking Machine Co., 26 Ga. App. 370 ( 106 S.E. 196); Dowling v. Southwell, 95 Ga. App. 29 (1) ( 96 S.E.2d 903). And mutual consent of the parties is sufficient consideration. Hardy v. Maddox, 72 Ga. App. 707, 711 ( 34 S.E.2d 903); Vlass v. Walker, 86 Ga. App. 742, 745 ( 72 S.E.2d 464); Tucker v. Baker, 88 Ga. App. 580 ( 77 S.E.2d 92).
Even if the original contract had been under seal, which is not shown, oral partial rescission can be had where, as here, the rescinding contract has been executed. Johnson v. Worthy, 17 Ga. 420 (2).
2. Contrary to the defendant's contention, Mr. Lucas was not a necessary party to this action, since the partial release operated to discharge him as to the electrical work called for under his general contract. Code § 20-905. Dowling v. Southwell, 95 Ga. App. 29, supra (2).
3. The special demurrer that the plaintiff failed to set out the new specifications in his petition is without merit because the plaintiff alleged that a copy of these specifications was not in his possession but was either in possession of the defendant or was available to him. See Mu Chapter Building Fund v. Henry, 204 Ga. 846, 852 ( 51 S.E.2d 841, 7 A.L.R. 2d 431); Davis v. Homer Lumber Co., 211 Ga. 144 (2) ( 84 S.E.2d 59).
4. It is contended by the defendant that the plaintiff bases his cause of action on an express contract but seeks to recover on quantum meruit. This contention is without merit. The contract between the plaintiff and defendant was that the defendant would pay the difference between the $1,798 called for by the old electrical specifications and the amount the new specifications would require. In order to show what the work under the new specifications cost, the plaintiff attached to his amended petition a very detailed account of the materials furnished and work performed and it was attached for the purpose of showing the contract price and not attached to the petition for the purpose of showing quantum meruit.
The court did not err in overruling the demurrers.
Judgment affirmed. Quillian and Nichols, JJ., concur.