Cannon v. Hunt

• Decision Date: 30 October 1902
• Citation: 42 S.E. 734,116 Ga. 452
• Parties: CANNON v. HUNT.
• Court: Georgia Supreme Court

42 S.E. 734

116 Ga. 452

CANNON v. HUNT.

Supreme Court of Georgia

October 30, 1902

Syllabus by the Court.

1. Where a contract with regard to the erection of a building by a contractor contains technical terms, prescribing how he is to perform certain work, parol evidence is admissible to explain the meaning of the language so employed; and if he has fully complied with his obligations under the contract both as to the materials used and the manner of doing the work, he is not to be held accountable for unsatisfactory results. If, on the other hand, the particular kind of materials to be furnished, and the manner in which the work is to be done, are not specified in the contract, he is at liberty, and is under a corresponding duty, to himself make a selection of proper materials, and to perform the work in the manner in which it should be done.

2. In view of the evidence adduced at the trial of this case, the court erred in charging the jury upon the contention of the plaintiff that the contractor was delayed by the act of the owner of the building from sooner commencing the erection thereof, and would have completed it within the time limited had he not been prevented from doing so by providential cause.

3. Whether or not lumber furnished by a contractor be just as "good and durable" as lumber of a different kind called for by his contract, is not the proper test for determining whether there has been a substantial compliance on his part with the terms thereof. On the contrary, the owner of the building is entitled to damages where material different from that specified in the contract is used in the construction of a building, even though the materials used be in all respects equally as good as those the contractor agreed to furnish.

4. Where the issue on trial is whether a contractor has or has not complied with the terms of his contract, proof that he enjoys a good reputation "for fair and honorable dealings" is wholly irrelevant, and therefore inadmissible.

5. Where, after the expiration of the time within which the contractor stipulated to complete the building, the owner enters into possession of the premises, as it is his right to do, he cannot be held to have waived all defects of which he knew, or could have known "by the exercise of ordinary care."

Error from superior court, Whitfield county; A. W. Fite, Judge.

Action by A. E. Hunt, as administratrix, against A. E. Cannon. Judgment for plaintiff, and defendant brings error. Reversed.

R. J. & J. McCamy, for plaintiff in error.

F. S Yaeger and Shumate & Maddox, for defendant in error.

LITTLE J.

The nature of this case is disclosed by the report made of it when it was here at the March term, 1901. See 113 Ga. 501, 38 S.E. 983. The jury having returned another verdict against Mrs. Cannon, the owner of the building which Hunt, the plaintiff's intestate, had undertaken to erect according to certain plans and specifications, she made a motion for a new trial, which was overruled, and she excepted. As the case must undergo still another investigation in the court below, we shall endeavor to dispose of all questions now presented which are likely to influence the result of the next hearing.

1. At the last trial Mrs. Cannon appears to have strenuously pressed her contention that "by reason of the imperfect condition of the roof, and the rain leaking through the same," goods and merchandise which she had placed in the building had been damaged to the amount of $300, and that it would cost a like amount to put the roof in the condition called for by the contract, which embraced the following stipulation: "All tin used to be N. & G. Taylor Company's old style redipped tin, best quality; roof to have standing seams not less than three-fourths; the sheets of tin to be laid the narrow way, with locked and soldered joints, well nailed in place by metal cleats and barbed nails." One of the issues which arose was whether or not, in view of this stipulation, it was the duty of the contractor to not only lock, but also solder, all cross-seams; and the trial judge allowed the plaintiff to introduce the testimony of experts to the effect that cross-seams were not usually soldered, and were not to be confounded with "locked and soldered joints," soldered joints being used only in fittings "around chimneys and scuttle holes," and in making connections "onto valleys where they run diagonally along." We have no hesitation in saying this testimony was properly admitted, under the rule that parol evidence is competent to explain the meaning of technical terms employed in contracts which have been reduced to writing. It was insisted by Mrs Cannon that, even if the above-quoted stipulation did not impose upon the contractor the express obligation of soldering all cross-seams, he should nevertheless have done so, in view of the fact that the roof was unusually flat, because the contract contained this additional stipulation: "All work and materials to be the best of their several kinds, suitable in all respects for the purpose for which they are used." In instructing the jury as to this branch of the case, his honor charged, in substance, that they were not to consider at all the slant of the roof, but should confine their attention to the determination of the question whether or not the materials used in covering the roof were of the kind specified in the contract, and the work was done in the manner...