Allied Enterprises, Inc. v. Brooks

• Decision Date: 07 May 1956
• Docket Number: No. 2,No. 36032,36032,2
• Citation: 93 S.E.2d 392,93 Ga.App. 832
• Parties: ALLIED ENTERPRISES, Incorporated, v. Harold BROOKS et al
• Court: Georgia Court of Appeals

Page 392

93 S.E.2d 392

93 Ga.App. 832

ALLIED ENTERPRISES, Incorporated, v. Harold BROOKS et al.

No. 36032.

Court of Appeals of Georgia, Division No. 2.

May 7, 1956.

Allied Enterprises, Incorporated, doing business as Allied Construction Company, brought an action in two counts for breach of contract against Mr. and Mrs. Harold Brooks in the Civil Court of DeKalb County. The material allegations of count 1 are substantially as follows: On June 18, 1954, the defendants contracted for the services of the plaintiff to do the following work on their home: Remove plaster in living room and dining room, and replace with new plaster; level floor in bedroom and dining room; install asphalt tile in kitchen; move sink under double window in kitchen; move washing machine and dryer; case door between kitchen and living room; install two electrical outlets; paint and finish floors; remove paper from living room wall and ceiling; remove wall between kitchen and living room and plaster ceiling; no painting; owner to paint. As consideration for these services the defendants agreed to pay the plaintiff $1,300, of which the defendants have paid $500. The plaintiff has completed the contract and has filed its lien in the office of the clerk of the Superior Court of DeKalb County. There is a balance due and owing of $800, which the defendants have failed and refused to pay.

The allegations of count 2 are substantially the same as those in count 1, save that in the latter count the plaintiff seeks to recover in quantum meruit the sum of $800.

The defendants answered denying the allegations of the petition, and by way of counterclaim alleged substantially the following: (11) The defendants entered into the following contract with plaintiff; 'Date June 18-54 * * * We, the undersigned property owners, authorize Allied Construction Co., hereinafter called the contractor, to furnish and install according to the following specifications, on the properties at: Address: 2054 Dunwoody St., N. E., Atlanta. Specifications: Take old plaster off of living room and dining room wall and replace with smooth plaster, to be white--Level floor in bedroom and dining room or any place else needed--Sand floor and install tile in kitchen, owner to pick color, cover wall to go in kitchen around the wall, color to be picked by owner--Seal off window in kitchen with plaster. Move sink over under double window in kitchen--move washing machine and dryer and connect in kitchen--door from dining room to kitchen to be cased and opening to be same as one being taken out of kitchen--Duct and heating stack to be moved and install on wall same as is now--One outlet to be installed in wall--and light switch--all floors to be sanded and finished natural--take old paper off of dining room wall and ceiling. Take out wall between kitchen and dining room and plaster ceiling. No painting to be done anywhere in home. All work to be done in workmanlike manner. Total cost of job contractor price $1,300. Five Hundred dollars paid down this date June 18-54 $800 to be paid 45 days after completion of job, every 30 days $25.56 for 36 mos. per F.H.A. plan--All for the sum of Thirteen Hundred Dollars and 26 cents contractor price $1,300.26 to be paid by: Harold Brooks $800.00 at $25.56 45 days after completion of job every 30 days for 36 mos. per F.H.A. plan. This agreement shall become binding only upon the contractor's written acceptance hereof in the space indicated below or upon the contractor's commencing performance and upon such acceptance or commencement of performance this shall constitute the entire contract and be binding upon the parties hereto, there being no covenants, promises, warranties, or agreements, written or oral, expressed or implied, except as herein set forth. No sales representative of the contractor has authority to alter the terms of this agreement in any particular. The contractor shall not be responsible for damage or delay due to strikes, fires, accidents or other causes beyond its reasonable control. The contractor carries Workman's Compensation and Public Liability and Property Damage Insurance, but does not assume risks of any character under this contract other than covered by such insurance. Checks or money orders must be drawn or indorsed to the order of Allied Construction Company. In event of cancellation vendee agrees to pay 25% of contract price to vendor for damage for breach of contract.'

(12) On June 18, 1954, the defendants paid the plaintiff $500 to apply on the work to be done to their home. (13) Thereafter workmen came to the defendants' home and began tearing out the plaster that was then on the walls of the front room and dining room and replaced it with a rough, sandy surfaced, plaster, rather than with smooth plaster as called for in the contract. (14) The plaster placed on the walls is not even, and instead, is rough, and in some places is flush with the base boards and casings around the doors and windows, and in other places is from 1/8 to 1/4 inch away from the point where it should be joined to the base boards and casings around the windows and doors. (15) Instead of a white plaster being placed on the walls, the walls are a rust, or brown, color, and if painted, the rust or brown color will not be completely covered as the color in the plaster will bleed through new paint that may be placed on the walls. (16) The plaintiff's servants and workmen failed to cover the registers where the heat from the hot air furnace was conducted into the living room and dining room, and allowed the dust, dirt, old plaster, and debris to be put in the hot air ducts leading from the furnace, and it became necessary for the defendants to have the ducts cleaned and reconnected together at places where the plaintiff's workmen had caused the air ducts to become disjointed, all at a cost to the defendants of $42.50, an item of damage for which they sue. (17) The walls in the defendants' living room and den are not level, and the natural finish placed on the floors instead of being smooth is sandy, and there is grit and rough places on the floors. (18) The walls in one of the bedrooms has cracked as the result of the plaintiff's inferior work in seeking to level the house and to place additional footings under the house. (19) The door that was to be replaced between the dining room and kitchen was removed from the defendants' property and although the defendants have demanded that the plaintiff return their door, it has failed and refused to do so. (20) Instead of plastering the wall where the sink was removed in the kitchen, the plaintiff left an open hole, causing a draft in cold weather and making it impossible to heat the kitchen properly. Over this hole the plaintiff has placed a metal siding which is not substantially installed. (22) The electrical receptacles were left loose and in unsafe condition in the kitchen and living room to such an extent that the washing machine will srart without anyone's turning on the switch, or touching the machine. (23) An open hole was left for an electrical outlet, but no electrical outlet or fixture was placed in this hole in the living room floor. (24) The walls in the den are warped and 'bucked.' (25) The tile flooring placed on the kitchen is 'bucked' and four or five pieces of tile are broken. Several of the pieces of tile which the plaintiff replaced do not match the original colors which the defendants selected for the kitchen floor. The plaintiff failed to place moulding in five of the corners of the kitchen, and left metal edges that are sharp and exposed to such an extent that the defendants and their children are compelled to be very careful not to go near the exposed metal for fear of being cut or scratched. (26) The floor in the kitchen was not made level before the tile floor was installed, and the flooring now follows the contour of the floor in which there are high and low places. (27) The air duct that was removed from the breakfast room has never been replaced by the plaintiff and the defendants have no heat in their kitchen, except from the kitchen stove, whereas before the plaintiff started work, the defendants had furnace heat in this area. (28) When the plaintiff first started the job it promised to complete all work within a period of 12 working days. (29) The plaintiff worked on the job for six weeks, has not yet completed it, and now says that it will require an additional 15 days to complete the work. (30) The plaintiff represented that it had skilled workmen to perform the work, but brought some workmen who were not skilled. (31) The plaintiff represented that its skilled workmen would do a good job satisfactory to the defendants, but no part of the work has been done in a workmanlike manner, and none of the work is satisfactory to the defendants. (32) The defendants have sought the services of other reputable contractors to complete the work they wanted done. In each and every instance, these contractors would not undertake the work unless all the plaster in the front room, dining room, den and middle bedroom could be replaced, which would involve an expense of $590. (33) The defendants have been unable to get any reputable contractor to do any work in their home except to clean out the plaster from the air ducts and reconnect them. (34) To complete the contract and do a workmanlike job in the defendants' home as it has been left by the...