Candler Inv. Co. v. Cox

• Citation: 62 S.E. 479,4 Ga.App. 763
• Decision Date: 30 September 1908
• Docket Number: 641,642.
• Parties: CANDLER INV. CO. v. COX. COX v. CANDLER INV. CO.
• Court: United States Court of Appeals (Georgia)

62 S.E. 479

4 Ga.App. 763

CANDLER INV. CO. v. COX.

COX v. CANDLER INV. CO.

Nos. 641, 642.

Court of Appeals of Georgia

September 30, 1908

Syllabus by the Court.

The rule which requires a contract to be considered as a whole and that no portion shall be discarded-that it shall be construed "ut res magis valeat quam pereat"-was properly applied by the trial judge in holding that the contract in this case required a continuous foundation wall.

A contract which requires the building of a wall is breached by failure to build it, although a substitute more suitable for the purpose be provided, unless the stipulation requiring a wall has been waived; and any damage resulting from the breach of the contract which required a wall, instead of piers, as well as the cost of the wall itself, would be recoverable.

Under the terms of the contract in this case the proper measure of damage was applied. A., having contracted to build a wall, as well as to insure the preservation of B.'s building, B upon proof of the breach of the contract, was entitled, by express terms of the contract, to recover the cost of the wall, as well as all damage which resulted to her building in the general construction of A.'s building.

The verdict was supported by the evidence, and there was no error in refusing a new trial. The terms of the contract itself precluded the consideration of the greater portion of the assignments of error urged by the defendant.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by Kate Cox against the Candler Investment Company for breach of contract. Judgment for plaintiff. Defendant brings error and plaintiff assigns a cross-bill. Judgment on the main bill affirmed, and cross-bill dismissed.

Candlers Thomson & Hirsch and Rosser & Brandon, for plaintiff in error.

Slaton & Phillips and Jno. L. Hopkins & Sons, for defendant in error.

RUSSELL J.

After more than one examination and consideration of the numerous points raised by the brief and suggested by the record though several times confused by the multiplicity of questions and the mass of the testimony, we are prepared to adhere to the conclusion we first reached when this case was argued. We have been diliberate, because of our respect for the great ability of the counsel for the plaintiff in error and the zeal and earnestness with which their positions were maintained. The more familiar, however, we have become with the record, the more we have become satisfied that no sufficient reason has been shown for reversing the judgment of the lower court in refusing a new trial. Stripping the case of those contentions which plainly could not have been material, and confining our view to those points where the difference between the parties is radical, the questions to be determined are extremely simple.

In the first place, it becomes necessary to determine the nature of the action. It is plainly a suit for the breach of a contract. The contract between the parties is set forth in full, and its breach is made the basis of the plaintiff's petition. If the contract was broken in any respect, the plaintiff had a cause of action against the defendant company, and under the terms of the contract the measure of the damages would be whatever amount it would cost the plaintiff to put her property, or at least the north wall of her building, in the same condition in which it was at the time the contract was entered into. This much being certain, it became, after the introduction of the contract, merely a matter of evidence for the jury as to whether the plaintiff's wall and building were damaged, and, if so, to what extent; that is, what sum would be necessary to enable the plaintiff to do for herself what the defendant had contracted to do for her.

1. In our judgment the contract was properly construed by the judge of the city court of Atlanta. We do not think that the proper construction of the contract admits of any doubt, especially when the rule is applied which requires a contract to be construed the more strongly against him who proposes it. The contract was as follows: "Georgia, Fulton County. This agreement, made and entered into this 19th day of March, 1904, between the Candler Investment Company, a corporation created by and existing under the laws of the state, of the one part, and Mrs. Kate Cox, of said county, of the other part, witnesseth: That party of the first part, being the owner of the property known as 'old First Methodist Church lot,' in the city of Atlanta, bounded on the north by Houston street, on the east by Pryor street, on the south by an alley and the property of said Mrs. Kate Cox, known as No. 113-15-17 Peachtree street, and on the west by Peachtree street, and desiring to make proper and needful excavations on its said property up to the dividing line between its said property and the said adjoining property of said Mrs. Kate Cox, to the depth of about twenty-eight feet, for the purpose of constructing a seventeen-story fireproof building, with basements, and having given party of the second part notice of its intention so to excavate for said purpose, has proposed to party of second part, as a measure of extraordinary care and precaution for sustaining her land, that, if she would consent to first party excavating under her foundation and erecting a wall thereunder, it would do the same without cost to her, taking due care and precaution, in so doing, to protect her said premises, and in the event of injury to her to be responsible for all damage she may sustain by reason of said excavation or any work in connection therewith. That party of the second part accepts said proposition and agrees that party of the first part may, at its own expense and without cost to her, excavate under her north wall, which adjoins the south property line of party of first part for the purpose of erecting thereunder such foundation as may be necessary and proper to sustain her land and prevent said wall from falling, or any injury thereto which will damage said property of second party or cause any damage or injury to her tenants. And in the event any such damage or injury should accrue, party of the first part to be liable therefor, and to save party of second part harmless from any loss of any character whatever that may arise from anything done by party of first part, its agents, employés, or contractors, in connection with the aforesaid work, or the erection of said building in general" (signed by the parties).

It is a well-settled and salutary rule of construction which requires not only that every contract shall be construed in pari materia, but that no portion shall be discarded if it can be avoided-"ut res magis valeat quam pereat." In the first clause of the contract it will be observed that the Candler Investment Company proposed to put a wall under the...