Bress v. Keep-Safe Industries, Inc.

• Decision Date: 04 September 1980
• Docket Number: KEEP-SAFE,No. 60069,60069
• Citation: 155 Ga.App. 544,271 S.E.2d 867
• Parties: BRESS v.INDUSTRIES, INC.
• Court: Georgia Court of Appeals

Page 867

271 S.E.2d 867

155 Ga.App. 544

BRESS v. KEEP-SAFE INDUSTRIES, INC.

No. 60069.

Court of Appeals of Georgia.

Argued June 6, 1980.

Decided Sept. 4, 1980.

C. Sammy Thomas, William B. Collyer, Jr., John V. Burch, Atlanta, for appellant.

James A. Gober, Atlanta, for appellee.

McMURRAY, Presiding Judge.

On March 24, 1974, Leon N. Bress entered into a contract with Armor Life Safety Systems, Inc., for the purchase and installation of a home security system. As installed, the system included a number of heat and smoke detectors and control devices such as "Control Box," "Arming Station Key," "Electronic Siren," and "Automatic Dialer." Included in the installation cost was "a complete Maintenance Agreement, covering all parts and labor for a period of one year from date of installation. This Agreement includes an annual routine check of all equipment, and answering all service calls at the above address. This Maintenance Agreement is renewable annually at buyer's option for the sum of ...," with the figure $120 stricken through and "1st yr. 60 per-phone call" added to the agreement. Following installation and for the next three years Armor Life Safety Systems, Inc., provided the contemplated maintenance service as shown by various payments made to it by check by Mr. Bress.

On February 2, 1977, Armor Life Safety Systems, Inc., was sold to Keep-Safe Industries, Inc., a subsidiary corporation of Ackerman & Co., and this information was supplied to the customers by Armor's president, Burton Kolker, who became vice-president of Keep-Safe. Mr. Bress was also notified by the president of Keep-Safe that it would be "now providing the monitoring of and service for your security system." As part of the acquisition, Keep-Safe notified all clients as follows: "All existing terms, warranties, conditions and/or stipulations of existing Armor contracts and clients are now assigned to, and assumed by Keep-Safe Industries, Inc., and shall remain in effect." Thereafter, Keep-Safe provided identical service formerly provided by Armor.

But in November, 1978, and April, 1979, Keep-Safe wrote to Mr. Bress contending they had erroneously been providing additional service not called for in the contract, such as "monitoring of your alarm signals and the dispatch of the appropriate authorities," which would cease April 30, 1979. A discussion then began between Keep-Safe and Mr. Bress as to what the installation contract provided and for how much. Keep-Safe sought to obtain another contract as to monitoring and maintenance of the system installed by Armor for Mr. Bress and advised by registered letter that if he did not want to sign the new contract for the providing of monitoring service but did want to continue the maintenance provision of the Armor contract and "at the $90.00 semi annual charge, please communicate this in writing to our office no later than December 15, 1978. No communication from you by this date will serve as notice to this company of your intent to terminate all services." The new alarm system agreement also provided for monitoring and maintenance of the system for the sum of $90 semi-annually. Keep-Safe had apparently submitted to plaintiff an "Alarm Service Agreement" dated "1st day of Dec. 1977" which apparently was not accepted by plaintiff wherein, for a $90 semi-annual payment, first payment due on May 1, 1978, Keep-Safe would provide service for "Burglar Alarm Monitoring," "Fire Alarm Monitoring," "Hold Up Alarm Monitoring," and "Maintenance" of subscriber's alarm system.

On August 22, 1979, Leon N. Bress sued Keep-Safe Industries, Inc., for damages for breach of contract, contending that the defendant notified plaintiff it would no longer honor the terms and conditions of the agreement, plaintiff had tendered the required annual payment of $60 and made written demand upon defendant that it continue to provide the maintenance and monitoring service formerly provided by its predecessor in accordance with the written agreement in which its predecessor had agreed to do so and sought damages in the sum of $4,500, seeking also reasonable attorney fees by reason of the bad faith and the stubbornly litigious manner in which defendant has acted in causing plaintiff unnecessary trouble and expense.

The defendant answered, denying the complaint, admitting only that Armor Life Safety Systems, Inc., had installed a life safety system for the plaintiff and provided for maintenance pursuant to the terms of a written agreement but denied that the agreement provided monitoring services. It also admitted that it had purchased the assets of Armor and assumed the terms and conditions of the written agreement. Defendant also contended that the plaintiff had breached the contract by failing to make payment of all installments due for maintenance.

After discovery defendant moved for summary judgment, contending...