Applegarth Supply Co., Inc. v. Schaffer, 48095

• Decision Date: 31 October 1973
• Docket Number: No. 48095,No. 1,48095,1
• Citation: 203 S.E.2d 277,130 Ga.App. 353
• Parties: APPLEGARTH SUPPLY COMPANY, INC. v. Sam SCHAFFER et al
• Court: Georgia Court of Appeals

Page 277

203 S.E.2d 277

130 Ga.App. 353

APPLEGARTH SUPPLY COMPANY, INC. v. Sam SCHAFFER et al.

No. 48095.

Court of Appeals of Georgia, Division No. 1.

Oct. 31, 1973.

Rehearing Denied Nov. 30, 1973.

Barwick, Bentley & Binford, M. Cook Barwick, Thomas S. Bentley, Warren W. Wills, Jr., Atlanta, for appellant.

Lipshutz, Macey, Zusmann & Sikes, Charles C. Pritchard, Charles E. Lamkin, Atlanta, for appellees.

Syllabus Opinion by the Court

QUILLIAN, Judge.

Applegarth Supply Co., Inc. filed its complaint in the Civil Court of Fulton County in three counts, naming as defendants Gridiron Investments, Inc. (hereinafter referred to as Gridiron), Schaffer Realty Company, Inc. (hereinafter referred to as the Realty Co.), Sam Schaffer (hereinafter referred to as Schaffer), and A. J. Block Jr. (hereinafter referred to as Block), individually and d/b/a English Oaks, Phase II. By amendment, Block and Schaffer, a partnership, of which Sam Schaffer and A. J. Block, Jr. are the general partners (hereinafter referred to as the Partnership) was added as a defendant as to each count.

In count one of its complaint, plaintiff alleged that it entered a contract with the defendants for the improvement of certain described property and that the defendants breached the contract. Plaintiff sought in count one judgment against the defendants jointly and severally.

In count two, plaintiff reasserted the allegations of count one, adding thereto its contentions that it supplied to the defendants materials in addition to those contemplated in the original contract, which materials were used by and benefited the defendants that defendants had not paid for the materials and that the defendants were thereby unjustly enriched. Plaintiff sought judgment against the defendants, jointly and severally, upon the theory of quantum valebant.

In count three, plaintiff alleged that it had supplied materials and equipment to the defendants, that the defendants at all times understood that plaintiff expected payment therefor and that an implied contract arose which was breached by the defendants in their refusal to pay plaintiff for such materials and equipment. Plaintiff sought judgment against the defendants jointly and severally for the breach of the implied contract.

Plaintiff, by amendment filed on October 26, 1972, added count four to its complaint alleging that defendants, acting through the individual defendants, Schaffer and Block, wilfully and maliciously made false representations unto plaintiff as to the financing arrangements for the apartment complex which defendants were developing and for which plaintiff was to furnish materials and equipment, and as to the method and means of payment to plaintiff for the materials and equipment which defendants sought plaintiff to supply. It was further alleged that defendants knew these representations to be false and that plaintiff would rely thereon; that plaintiff did rely thereon and was damaged thereby.

Defendants Schaffer, Block, the Realty Company, and Gridiron filed their answers denying that they were indebted to plaintiff by reason of any allegation of count one, count two, or count three as originally filed. The Partnership filed its answer to the complaint, as amended, on December 21, 1972 (subsequent to the hearing on motions for summary judgment by Schaffer, Black and the Realty Company and the initial ruling thereon of October 26, 1972) denying liability to plaintiff on count one, count two, count three or count four.

Defendants Schaffer, Block and the Realty Company filed their respective motions for summary judgment on April 20, 1972 prior to the October 26, 1972 amendment to plaintiff's complaint by which count four thereof was added. The motions were supported by affidavits, depositions and interrogatories on file.

On October 25, 1972, plaintiff filed with the trial court and served upon defendants its affidavit and supporting matters in opposition to the motions for summary judgment. Plaintiff relied upon answers to interrogatories and depositions on file, in addition to the affidavit of William F. Applegarth, president of plaintiff, in opposing the motions.

The motions for summary judgment came on for hearing on October 26, 1972, at the conclusion of which the trial judge ruled orally upon the motions, granting the motions as to some defendants and as to some counts of the complaint and denying said motions as to other defendants and as to other counts. More than two months later, the trial court issued on order dated and filed January 2, 1973, granting the motions for summary judgment of Schaffer, Block and the Realty Company, and the Partnership as to not only counts one, two and three of the complaint, as amended, but also as to count four thereof. Appeal was taken from that judgment. Held:

1. The second and third counts of the petition seek recovery under the theory of an implied contract. The president of the plaintiff by affidavit testified: 'Applegarth Supply Co., Inc. supplied to the English Oaks Apartment project at the instance of and for the use of Block and Schaffer extra materials and equipment not contemplated by the original agreement or any amendments or changes thereto in the amount of $4,894.13.'

The defendants argue that the contract was to furnish all materials and equipment necessary for air conditioning. Hence, it is urged there could be no implied contract for any extra materials. The contract in question provided that the plaintiff would furnish the material for complete air conditioning and heating of the apartments. Although this language is broad it is not so all...