Bailey v. Martin
| Decision Date | 21 January 1960 |
| Docket Number | No. 2,No. 38012,38012,2 |
| Citation | 101 Ga.App. 63,112 S.E.2d 807 |
| Parties | Lawson BAILEY v. W. G. MARTIN et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The petition in this case stated a cause of action for extra work over and above that stipulated in the contract which was performed by the plaintiff in building a house for the defendants, and the trial court erred in sustaining the general demurrers to the petition.
Lawson Bailey filed suit against W. G. Martin and his wife to recover an amount alleged to be due him on account of certain work performed by him in constructing a house for the defendants. The defendants filed general and special demurrers to the petition, the plaintiff amended and the defendants filed additional general and special demurrers and renewed the original grounds of demurrer. The trial court entered an order sustaining the general demurrers, and the assignment of error here is on that judgment.
The petition as amended alleged substantially that the plaintiff entered into a contract with W. G. Martin to construct a residence on his property; that pursuant to the contract the plaintiff undertook to construct the dwelling; that during the construction the defendants directed the plaintiff to make certain additions of materials, to install certain listed utilities, and to make certain changes in the specifications for materials and labor as per the following itemization:
that theses changes and additions were made pursuant to express directions of the defendants; that petitioner furnished and installed said items and made said changes in reliance upon said express representations that they would pay the cost thereof, that the defendants and petitioner mutually disregarded the provision in the contract requiring such changes and substitutions to be reduced to writing and mutually substituted oral approval of the defendants for written approval referred to in said contract; that these changes and additions to the job entailed additional costs and expense, and that the defendants were informed by the plaintiff that the changes could not be made for the contract price and that the additional and requested items would require the payment of additional sums and that the defendants agreed and promised to pay for the additional costs required in making the changes and additions to the job which totalled $751.77; that the plaintiff completed the house, including the extras sued for, which was accepted by the defendants who upon completion thereof moved into it and paid the plaintiff the sum of $11,927.62 which was the contract price; that the plaintiff had made demand upon the defendants for payment of the additional amount and that they had refused.
A copy of the contract originally entered into between the parties was attached to the petition as an exhibit. In the contract the plaintiff, who was described therein as the contractor, agreed to furnish all materials and perform all work as shown on certain drawings and specifications referred to therein for the total contract price of $11,927.62. The contract further provided that no deviations from the drawings and specifications referred to, or changes or substitutions of material, 'shall be made without prior written approval of the owner.'
Robert Edward Surles, Summerville, for plaintiff in error.
Cook & Palmour, A. Cecil Palmour, Summerville, for defendant in error.
CARLISLE, Judge (after stating the foregoing facts).
All that a petition needs to allege in order to state a cause of action and to withstand a general demurrer is facts showing the existence of a duty on the part of the defendant, the violation of that duty by the defendant, and the damages accruing to the plaintiff as a result thereof. Vickers v. Georgia Power Co., 79 Ga.App. 456, 458, 54 S.E.2d 152; Hogan v. Young Men's Christian Association, 82 Ga.App. 372, 61 S.E.2d 161; 41 Am.Jur., Pleadings, § 78. After the owner and a builder have entered into a written contract for the construction of a building, they may thereafter, by mutual consent, alter or modify the original contract. Jacksonville & A. R. Co. v. Woodworth, 26 Fla. 368, 8 So. 177; Cornish v. Suydam, 99 Ala. 620, 13 So. 118. Under this rule they may, by subsequent agreement, modify the contract and require thereby deviations and departures from the original contract and enter into a new and completely different agreement. West Haven Water Co. v. Redfield, 58 Conn. 39, 18 A. 978; Greene v. Paul, 155 Pa. 126, 25 A. 867. When the facts alleged in the petition, reasonably construed, show that the parties have thus entered into a new and distinct agreement, they will be held to have waived by such a course of conduct any right contradictory to the new agreement embodied in the original contract. Cornish v. Suydam, supra; Edmunds v. Welling, 57 Or. 103, 110 P. 533; McDaniel v. Mallary Bros. Machinery Co., 6 Ga.App. 848, 66 S.E. 146; Greene County Oil Co. v. McCaw Mfg. Co., 9 Ga.App. 39, 70 S.E. 201; Meredith v. J. A. Fay & Egan Co., 36 Ga.App. 506, 137 S.E. 409; Eaves v. Georgian Co., 47 Ga.App. 37(4), 169 S.E. 519; Kennesaw Guano Co. v. Miles & Co., 132 Ga. 763, 64 S.E. 1087. Thus, where a written contract for the construction of a building is on its face complete within itself and contains therein a stipulation that no changes or alterations or modifications thereof will be allowed unless in writing, the parties may by mutual assent disregard this provision of the contract and enter into a new agreement regarding the same subject...
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