43 S.E. 419 (Ga. 1903), Byrd v. English

Citation:43 S.E. 419, 117 Ga. 191
Opinion Judge:CANDLER, J.
Party Name:BYRD v. ENGLISH et al.
Attorney:Vasser Wooley, for plaintiff in error. Spencer R. Atkinson, E. V. Carter, and L. Z. Rosser, for defendants in error.
Case Date:February 11, 1903
Court:Supreme Court of Georgia

Page 419

43 S.E. 419 (Ga. 1903)

117 Ga. 191



ENGLISH et al.

Supreme Court of Georgia

February 11, 1903

Syllabus by the Court.

1. A party to a contract, who is injured by reason of the failure of the other party to comply with its terms, cannot recover damages for the negligent act of a third person, by which the performance of the contract was rendered impossible.

Error from city court of Atlanta; H. M. Reid, Judge.

Action by C. P. Byrd against J. W. English and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Vasser Wooley, for plaintiff in error.

Spencer R. Atkinson, E. V. Carter, and L. Z. Rosser, for defendants in error.


The petition filed by the plaintiff in the court below makes substantially the following case: The plaintiff was engaged in the printing and publishing business in the city of Atlanta, maintaining a large establishment, in which many workmen were employed. In the operation of his machinery and the lighting of his place of business he was dependent upon electric power supplied by the Georgia Electric Light Company, a corporation, and this power was conveyed by means of wires contained in conduits which were laid down under the

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ground. On a named day the defendants were engaged in constructing a building which was to be located on the same street as that on which the plaintiff's place of business was situated, and, as incident to the work of construction, were excavating the lot of the defendant English, on which the building was to be constructed, for the purpose of inclosing a basement. In doing this they also excavated the earth under the sidewalk adjoining the lot. This was done without authority of law, and in violation of an ordinance of the city of Atlanta. By the negligence of the employés of the defendants, a wall of earth was allowed to fall in on the conduits containing the electric wires over which power was conveyed to the plaintiff's plant. The wires were broken, and for several hours he was without the means of conducting his business, by reason of which fact he suffered damage set out in the petition. By amendments it was alleged that the plaintiff had a right to demand of the Georgia Electric Light Company the electric power which it had been furnishing him; that, but for the tort complained of, that company would have furnished him with power, and he would not have been damaged as set out; that the conduits of the electric light company were placed in the street by authority of the city of Atlanta, and in the exercise of the right of eminent domain in the company; that the plaintiff was under a contract with the Georgia Electric Light Company, by virtue of which that company furnished him with electric power, and under the terms of which he could not recover from it for damage occasioned by an accidental interruption of the current such as this was; that at the time of the commission of the tort complained of there was no other company or person in Atlanta offering to furnish electric current from whom the plaintiff could have secured service during...

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