Albany Phosphate Co v. Bros

• Decision Date: 30 September 1908
• Docket Number: (No. 652.)
• Citation: 4 Ga.App. 771,62 S.E. 533
• Parties: ALBANY PHOSPHATE CO. v. HUGGER BROS.
• Court: Georgia Court of Appeals

62 S.E. 533

4 Ga.App. 771

ALBANY PHOSPHATE CO.

v.HUGGER BROS.

(No. 652.)

Court of Appeals of Georgia.

Sept. 30, 1908.

1. Pleading—Objections to Rulings on Demurrer—Waives.

The rule of the common law which forbade the filing of contradictory pleas does not prevail in this state. Under the provisions of Civ. Code 1895, § 5047, a defendant may rely at one and the same time on a demurrer, a plea in bar, and a plea in discharge. Pleas, however conflicting, do not oust each other.

(a) The admission by the defendant of a prima facie case in the plaintiff, in order to get the opening and concluding argument before the jury, whether made in the original answer or by amendment, does not estop the defendant from complaining of prior rulings on demurrer to which exceptions pendente lite have been filed.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1403-1405.]

2. Contracts — Architect's Certificate — Form.

Where the contract does not prescribe otherwise, the certificate of an architect as to the satisfactory completion of a building need not follow any particular form.

3. Damages—Measure—Breach of Contract.

Where a contract has been broken, the law seeks to give such damages as will put the injured party in the same position as if the contract had been kept, subject, however, to the exception that damages which are speculative, consequential, or of a nature not reasonably within the contemplation of both parties as a natural and probable result of a breach, are not recoverable.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Damages, § 58.]

(a) Where a builder agrees to erect a building within a certain time, knowing that it has been leased from the time named for its completion, and breaks the stipulation as to time, he is ordinarily liable to the owner for loss of rent, but not for loss of interest on the capital invested in the building, nor for damages paid by the owner to a lessee in accordance with a stipulation of the lease contract, as to which the builder had no knowledge.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Damages, § 312.]

4. Motions — Vacating or Setting Aside Orders—Power After Term—New Trial— Grounds—Harmless Error.

Where an amendment to pleadings has been, in term, duly allowed over objection by demurrer, it is not, after the term has expired, within the power of the court to revoke the order of allowance and on motion strike the amendment; but harmless error in this regard will not authorize the grant of a new trial.

5. Jury—Qualifications of Jurors—Age.

A juror over 60 years old is exempt, but not disqualified to serve in a civil case. His exemption is a privilege, but not a disqualification.

[Ed. Note.—For cases In point, see Cent. Dig. vol. 31, Jury, § 264.]

6. Trial—Evidence— Admissibility.

"It has long been the rule in this state, when the admissibility of evidence is doubtful, to admit it and leave its weight and effect to be determined by the jury."

7. Trial—Instructions.

The charge of the court was accurate, fair, comprehensive of the issues in the case, and free from material error. The verdict is amply supported by the evidence, and no reversible error appears.

(Syllabus by the Court.)

Error from City Court of Albany; D. F. Crosland, Judge.

Action by Hugger Bros. against the Albany Phosphate Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Hugger Bros. contracted with the Albany Phosphate Company to build a large plant for the manufacture of acid phosphate and fertilizers, according to certain plans and specifications made by architect and engineer P. S. Gilchrist, which contract reads as follows: "This agreement, made and entered into this 17th day of May, 1905, between the Albany Phosphate Company, of Albany, Georgia, a corporation organized and existing under the laws of the state of Georgia, hereinafter called the 'company, ' party of the first part, and Hugger Bros., of Columbia, Tenn., hereinafter called the 'builder, ' party of the second part, witnesseth: First. Said builder hereby agrees with said company that he will well and substantially build the fertilizer buildings near the city of Albany according to the plans and detailed specifications furnished by Peter S. Gilchrist, Charlotte, N. C.; said work to be executed in the most sound, substantial, and workmanlike manner, and with the best materials of their respective kinds, the cost of which (except the Glover tower frame), with all iron work, nails, scaffolds, ladders, and implements of every kind, is to be borne by said builder, for the sum of $40,500, to be paid to the said builder by the said company. Second. The builder shall be paid in the following manner; that is to say: When Peter S. Gilchrist, architect and engineer, shall have certified that the work has been completed to his satisfaction, and that the builder has complied with the conditions of the aforesaid plans and specifications, then said company agrees, when said certificate shall have been presented to it, to pay the aforesaid sum of $40,500; payments to be made as is customary during construction namely, 80 [sic] per cent. every 30 days, as the work progresses, the balance on completion. In no case is the payment to be made within 20 per cent. of the work and materials on the ground. Third. Any alterations or changes that the company may wish to have made during the progress of the work shall be done by said builder in accordance with the wishes of said company, and the difference in said cost, if any, shall be approved by P. S. Gilchrist, engineer, before settlement shall be made. In no case shall the charges be greater in proportion to the work done than the work according to the original plans would have cost. Fourth. The said builder further agrees with the said company that he will finish the whole of said work according to the full intent and meaning of the said plans and specifications, and to the satisfaction of P. S. Gilchrist, engineer, within 120 working days, and will have ready for said company the acid chamber building within 40 working days for the lead work to be done, and will have the fertilizer mill building ready for machinery to be placed therein within 70 working days from the time the railroad tracks are ready to receive material. The same builder will be responsible to the company for any delay caused by his failure to complete the building according to contract." (Signed by the parties.)

The builders, claiming to have finished the buildings according to contract, filed suit for an alleged balance due of $9,366.44. The defendant, claiming that the builders had delayed the completion of the building for a period of three months, whereby it had suffered various items of damages, contended for a recoupment therefor. The items of damage claimed were as follows: (1) The estimated profit on the output of the factory during the period of delay, amounting to $36,450; (2) the rental value of the plant during this same period, amounting to $9,000; (3) the interest on the sum invested for the period of delay, amounting to $3,500; and (4) the amount which the defendant had been compelled to pay the lessee of the building in accordance with its contract with said lessee, amounting to $9,053. The court struck the portions of the answer alleging the third and fourth items of damage as above, to which rulings the defendant excepted pendente lite. The court also overruled general and special demurrers to the plaintiffs' petition, to which rulings the defendant likewise preserved exceptions pendente lite. The trial resulted in a verdict in favor of the plaintiffs for $7,666.44. The defendant moved for a new trial, which was denied. The bill of exceptions to this court complains of the rulings pendente lite and also of the overruling of the motion for a new trial. The further facts necessary to an understanding of the points thus raised are stated in the opinion.

Olin J. Wimberly and Wooten & Hofmayer, for plaintiff in error.

J. W. Walters & Sons, for defendants in error.

RUSSELL, J. (after stating the facts as above). 1. After the court had made the several rulings on demurrer adverse to the defendant, to which exceptions pendente lite were preserved, and before the introduction of any testimony at the trial, the defendant admitted a prima facie case in the plaintiffs in order to obtain the opening and concluding argument before the jury, and in the trial of the case it availed itself of this right. The defendants in error contend that this court should not consider any of the exceptions pendente lite, for the reason that this admission is a waiver of the defendant's right to complain thereof, estopping and precluding it from complaining of any adverse ruling made prior to such admission. So far as our investigation has gone, the exact point thus raised has never been passed upon by this court or by the Supreme Court, and its proper determination necessitates a consideration of the basis of the right to open and close and of the nature of the admission which the defendant must make in order to deprive the plaintiff thereof. The reason back of the rule which gives this right to the plaintiff in the first instance is that he has the burden of carrying the affirmative of the issue. The law recognizes that it is harder to build than it is to tear down, and so seeks to do even-handed justice by giving him who has the harder task—the burden of proof as to the issue between the litigants—the advantage of the argument. Generally the issue is the truth of the facts alleged in the plaintiff's declaration, and the right to open and close the argument belongs by right to him. But if the defendant admits those facts which show a prima facie case in the plaintiff, and seeks to avoid or defeat such prima facie case by the introduction of new facts by the way of an affirmative defense, as to such a defense he has the burden of carrying the affirmative of the issue, and the law gives him the right to...