Broxton v. Nelson

• Decision Date: 21 January 1898
• Citation: 30 S.E. 38,103 Ga. 327
• Parties: BROXTON v. NELSON.
• Court: Georgia Supreme Court

30 S.E. 38

103 Ga. 327

BROXTON v. NELSON.

Supreme Court of Georgia

January 21, 1898

Syllabus by the Court.

1. But one suit can be maintained for several breaches of an entire contract when all of them occurred before the commencement of the plaintiff's action.

2. This being the law, one who instituted in a justice's court an action for a specified sum claimed to be due upon a written contract entire in its nature, a copy of the same being setforth, and for other demands therewith connected, all the alleged items of indebtedness sued for being stated and summed up in an account, the same being credited with various sums as partial payments thereof, and the plaintiff's net demand in the case being for a " balance due on contract," he could not thereafter maintain a second action for alleged breaches of the same contract which occurred before the first suit was instituted; nor was it, in the trial of the latter action, competent for the plaintiff to contradict by parol evidence the allegations unequivocally appearing on the face of his pleadings in the first.

3. The rule above announced is not varied because the damages sought to be recovered in the second action were for an amount beyond the jurisdiction of a justice court.

Error from city court of Atlanta; J. D. Berry, Judge.

Action by W.T. Broxton against L.B. Nelson. From a judgment entered on a verdict directed for defendant, plaintiff brings error. Affirmed.

Simmons & Corrigan, for plaintiff in error.

King & Spalding, for defendant in error.

LITTLE J.

1. The plaintiff entered into a contract with the defendant whereby the former undertook to construct for the latter "all the work included in the carpenter work labor only on houses #1, #2, #3, and #4, on Highland and East avenues and Garfield Place, Atlanta, Ga., according to plans and specifications for said houses" made by a named architect; the defendant to "proceed with said work, and every part and detail thereof, in a prompt and diligent manner, and shall wholly finish the said work according to the drawings and specifications." "The sum to be paid by the owner [defendant] to the contractor [plaintiff] for the said work only shall be $380.00 for #1 house, $407.00 for #2 house $476.00 for #3 house, and $380.00 for #4 house; a total of $1,643.00 for the four houses. *** Such sums shall be paid by the owner to the contractor during the progress of the work on estimates made by the architect, which at no time shall exceed 75% of amount of work accepted by the architect. *** Said owner hereby promises and agrees with the said contractor to employ, and hereby employs, him to provide the labor and do the said work according to the terms and conditions herein contained and referred to, for the price aforesaid," etc. This was an entire contract, and not divisible. Under its terms, the plaintiff obligated himself to build four houses, and the defendant in turn obligated himself to pay a gross sum therefor. Story, in his work on Contracts (volume 1 [5th Ed.] §26), says: "An entire contract is a contract the consideration of which is entire on both sides. The entire fulfillment of the promise by either, in the absence of any agreement to the contrary, or waiver, is a condition precedent to the fulfillment of any part of the promise by the other. Whenever, therefore, there is a contract to pay a gross sum for a certain and definite consideration, the contract is entire, and is not apportionable either at law or in equity." In determining whether a contract is entire or severable, the criterion is to be found in the question whether the whole quantity, service, or thing--all, as a whole--is of the essence of the contract. If it appear that the contract was to take the whole or none, then the contract would be entire. Clark, Cont. 657. In the present case the work which the plaintiff undertook to do was definite and fixed,--to build four houses. The defendant undertook to pay a gross sum in consideration of such work. The amounts named for each house were not separate undertakings on the part...