Candler v. Hunnicutt

• Decision Date: 25 February 1926
• Docket Number: (No. 16358.)
• Citation: 35 Ga.App. 120,132 S.E. 140
• Parties: CANDLER. v. HUNNICUTT.
• Court: Georgia Court of Appeals

35 Ga.App. 120

132 S.E. 140

CANDLER.

v.HUNNICUTT.

(No. 16358.)

Court of Appeals of Georgia, Division No. 2.

Feb. 25, 1926.

(Syllabus by Editorial Staff.)

Error from Superior Court, De Kalb County; John B. Hutcheson, Judge.

Suit by J. E. Hunnicutt against Asa G. Candler, Jr. Judgment for plaintiff, and defendant brings error. Reversed.

Candler, Thomson & Hirsch, of Atlanta, for plaintiff in error.

Branch & Howard, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

STEPHENS, J. [1] 1. Where one contracts with the owner of a house which is being built to furnish and install in the house certain tiling as called for in the architect's specifications, and no time for performance is specified, a reasonable time, determinable by all the circumstances, will be allowed for the performance of the work contracted for.

2. Where by the terms of the contract the tile to be furnished is of a designated kind produced by a particular manufacturer only, the furnishing of the tile agreed upon, produced by the particular manufacturer only, and not the furnishing of a tile just as good procured elsewhere and made by some other manufacturer, is essential to a compliance with the terms of the contract.

3. Where, after the execution of such contract between the owner of the house and the person agreeing to furnish and install the tile, the owner becomes impatient at the delay in the performance of the contract by the person who has agreed to furnish and install the tile, which delay is due to the failure of the manufacturer from whom the. tile has been ordered to make early deliver-ies of the tile, and it is thereupon agreed that the owner will select other tile, to be procured elsewhere, which is to be substituted for that of the particular manufacture, and which is to be furnished and installed by the other contracting party under the terms of the contract originally made, such agreement constitutes no binding obligation upon the owner. Any agreement or promise by the owner to select another tile to be substituted for that contracted for is without consideration, and amounts only to an offer to agree to a modification of the contract. Such a promise, moreover, is unenforceable, in that the owner is left free to select for substitution such tile as he may see fit, and the other contracting party cannot compel a selection.

4. In a suit against the owner by the party agreeing to furnish and install the tile, the allowance of an amendment to the petition, setting up...