Callaway v. Barmore
| Decision Date | 19 September 1924 |
| Docket Number | (No. 15076.) |
| Citation | 32 Ga.App. 665,124 S.E. 382 |
| Parties | CALLAWAY . v. BARMORE. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by E. R. Barmore against E. O. Callaway. Judgment for plaintiff, and defendant brings error. Reversed.
Westmoreland Smith and Frank A. Hooper & Son, all of Atlanta, for plaintiff in error.
Hardwick & Jordan, of Atlanta, for defendant in error.
JENKINS, P. J. E. R. Barmore, a contractor and builder, brought suit in the city court of Atlanta against E. C. Callaway for the breach of an alleged contract whereby, it is averred, he was employed by the defendant, The petition alleges that soon after the plaintiff entered upon the work the defendant stopped him and prevented his performance of the alleged contract, causing him the damage sued for. A verdict was found for the plaintiff, the defendant made a motion for a new trial which the court refused, and he excepted.
1. It is vigorously maintained by the plaintiff in error that the verdict is without evidence to support it because of the absence of any proof of authority in the architect, Chapman, to make the contract. The owners of the property in question were a Miss Clark and her sister who lived in California. They were aunts of the defendant's wife. He resided in Atlanta, and as a relative of the owners was concerned in the protection of their interests, and, while he would advise them, he was in no sense their agent. These facts are undisputed.
Chapman, the architect, sworn as a witness for the plaintiff, testified with reference to three separate conferences which he had with the defendant, Callaway, preceding his action in employing the plaintiff in the defendant's name to do the work upon the wall. He said that at the first conference Callaway called his attention to the defective wall, and asked him to go down and look at it, declaring to him at the time, however, that, while he, Callaway, was interested in the owners, he was not their agent, had no authority to act as such, and that any contract would have to be made by B. D. Watkins & Co., the owners' representatives. The second conference was after the witness had examined the wall and found it, as he said, in a dangerous condition. He testified that he reported this fact to Mr. Callaway, and advised that it was "hazardous to leave that wall to stand in that shape, " but that Mr. Callaway requested him to go down and look at it again in order to verify his opinion; and that at that time he called the plaintiff, Barmore, to meet him there. With reference to the third conference the witness testified:
"I then [after the second visit to the wall] went back and reported to Mr. Callaway that I was still of the same opinion, that the wall should be made safe as soon as possible, and Mr. Callaway told me at that time to have the wall jacked up and made safe, and then they would see how much would have to be replaced, and what other work would have to be done on it."
Thereafter, without further communication with Callaway. Chapman proceeded to make the contract in his behalf upon which the plaintiff, Barmore, relies.
Other evidence of this witness was as follows:
"He stated that his wife was a niece of Miss Clark, and he was interested in Miss Clark, but that Watkins Company was her agents here, to collect rents and look after the building, and for me to go and look at it and make an estimate, but Watkins would have to make the contract with me; but he told me not to see the Watkins people until I saw him and let him know what it was going to be." "After I had reported to him exactly the condition of it he said, 'Have it jacked up and made safe, held in place, and then we will see what can be done with it.' " "No, sir, he didn't tell me, 'Mr. Chapman, you get a contractor, go there and fix that wall, and make a contract with him.' "
The jury might have concluded from this testimony that, while the defendant did not, in terms, authorize the witness to enter into a contract, he nevertheless instructed the witness to have the wall jacked up and made safe.
The defendant testified that he never instructed Mr. Chapman to make any contract about having the work done, and denied most positively that he directed him to have the wall jacked up and made safe. He claimed that Chapman solicited work and told him about the defective wall, and that he replied:
He testified that he promised merely to recommend Chapman for the job, and that he said to him, "You will have to make your ultimate contract with them [Watkins & Co.], as I have no right or title In it, and have no right to make the contract"; that he tried "to make it plain, " and further said to Chapman, "If you will go down and look at the wall, you might see what you think it would cost, so that we can tell Miss Clark"; that thereupon Chapman went to examine the wall and reported its condition; that Chapman then asked if he should now go down and see Watkins & Co., to which the defendant replied, ; and that the most he ever said to Chapman was,
The defendant claims not to have had any further conversation with Chapman until the next day, when he found that Chapman had undertaken to contract with Barmore on his behalf. It appears that the contract was instantly repudiated, and that Barmore was required by the defendant to desist from its further execution.
The action is not founded upon the theory that the defendant Callaway undertook without authority to contract on behalf of the owners of the property. But the plaintiff is seeking to hold him to a contract which he is alleged to have made upon his own credit through his alleged agent Chapman. We think the evidence for the plaintiff was sufficient to authorize the inference that, while Callaway at first did not intend to enter into any contractual relations either upon his own account or in behalf of the owners, desiring merely to become informed as to the condition of the property of his wife's relatives, in whom he was interested, in order that he might advise them or their agents of any needed repairs, he nevertheless, finally, on being informed that the wall was in danger of collapsing at any time and was requiring immediate attention, concluded, in view of the emergency, to pledge his own responsibility to the extent of such temporary measures as would make the wall safe, after which such general and permanent repairs as the condition of the wall might require should be provided through Watkins & Co., whom he had mentioned at the outset as the only ones authorized to act for them. The evidence for the plaintiff warranted the conclusion that on account of his relationship to the owners and his solicitude for their best interests he decided ultimately to employ his own credit toward guarding against the more serious losses which might result to them if the wall did not have immediate attention, taking the risk of reimbursement, or waiving it. If he told Chapman to have the wall jacked up and made safe, his declaration at the same time that he was unauthorized to act for the owners might perhaps, under one view of it, even tend to strengthen the inference that he was acting for himself.
The conflict in the testimony as to whether he gave Chapman such directions was one of fact which, of course, has been settled in favor of the plaintiff by the jury, and by their solution of it, whatever may have been the actual truth, this court under the law is absolutely bound. The evidence was sufficient to authorize a finding that Chapman was empowered as the defendant's agent to make the contract.
2. In one of the special grounds of the amended motion error is assigned upon the following charge of the court:
It is insisted that, even though the jury should have believed that the defendant directed Chapman to have the wall jacked up and made safe, it was still for them to determine whether under all the facts and circumstances such direction would constitute Chapman the agent of Callaway with authority to make the contract in question, that is, to make a contract with another to do the...
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