Cannon v. Hunt

• Decision Date: 22 May 1901
• Citation: Cannon v. Hunt, 113 Ga. 501, 38 S.E. 983 (Ga. 1901)
• Parties: CANNON v. HUNT.
• Court: Georgia Supreme Court

38 S.E. 983

113 Ga. 501

CANNON v. HUNT.

Supreme Court of Georgia

May 22, 1901

Syllabus by the Court.

1.When the owner of land and a contractor agree upon terms for the erection of a building in a particular manner, and by the use of certain specified materials, "under the personal and direct supervision" of a named person, he having no authority other than that indicated by the words quoted, the right of the owner to have the terms of his contract complied with is not affected by the fact that such superintendent accepted a class of work and material different from that named in the contract.

2.When a contractor undertakes to do certain work (the erection of a building) within a limited period of time, the exercise of proper prudence on his part requires that the work be commenced within such a reasonable time after the execution of the contract as would enable him to finish it within the time limit, notwithstanding unusual, heavy, or constant rains; and, when it was shown in such a case that the contractor delayed the commencement of the work to a period after which he could only have finished it within the limit had the season been an ordinary one, it was error on the part of the trial judge to charge the jury, in effect, that if the contractor commenced the work at a period which would have enabled him to finish it within the time limit under ordinary conditions, but was thereafter prevented from completing it in the given time, because of unusual, heavy, and constant rains, such causes would be a sufficient excuse for a failure to construct the work within the time limit.

3.Where one claims damages from a contractor because of the failure to erect a store and office building within a given time, and the evidence supports such claim, the proper measure of damages is the rental value of the building for the time elapsing between the time fixed for its completion and the time when it was delivered and turned over.

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

Action by Mrs. E. A. Hunt, administratrix, against Mrs. A. E Cannon, for materials and labor furnished in the erection of a building.From a judgment in favor of plaintiff, defendant brings error.Reversed.

Payne & Tye and R. J. & J.McCamy, for plaintiff in error.

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

LITTLE J.

This case seems to have been tried under a misapprehension of the rules of law which govern the issues raised by the pleadings and evidence.Mrs. Hunt, administratrix, instituted her action against Mrs. Cannon to recover what she alleged was due to her intestate as a balance on the contract price for furnishing material and erecting a brick store and office building in the city of Dalton.The work was undertaken under a contract the material stipulations of which are as follows The intestate agreed to furnish all the materials and labor of every kind and build complete, on the lot of the defendant, a brick store and office building, as shown on certain plans, and set forth in certain specifications, under the personal and direct supervision of J. A. Blanton.The specifications were made part of the contract.It was further agreed that the intestate should complete the work, and turn the building over to the owner, on or before the 1st day of December, 1898, and, in consideration of the performance of said work according to agreement, the defendant should pay to intestate the sum of $7,650.It was alleged that intestate performed his contract in accordance with its terms as to character of work and material; although there was some delay in completing the work, it was from providential cause, and that defendant accepted the work and went into possession of the building when completed; that defendant had paid $6,000 on the contract price, leaving due thereon $1,650, which petitioner is entitled to recover.She prayed for a judgment having a special lien on the lot and building.The defendant admitted the execution of the contract, but denied liability for any sum in excess of that which she had paid, and denied also, that the failure to complete the building at the time specified was for providential cause, but charged that it was on account of the fault and neglect of the intestate.Defendant also averred that intestate had used defective material in the construction of the building, and that the workmanship on same was bad, and set out a detailed statement of particulars, in which she claimed to have been injured, by the use of improper material and workmanship, in an amount exceeding $3,000.Among other things, she claimed that the lumber used in constructing the house was of inferior quality and unseasoned; that the cement used was not that called for by the contract, but of an inferior quality, which would not shut out water; that the roofing was not done according to contract; that the doors and windows were not according to contract; and because of these imperfections the house leaked, her goods were damaged, and it would require a considerable sum of money to obviate these defects in material and construction.

A number of witnesses were introduced for both plaintiff and defendant, but we do not find it necessary to refer to their evidence in detail.It is sufficient to say that the evidence for the plaintiff tended to show that the building was properly constructed, and, in the main, the materials used were those set out in the specifications.It was not denied that in certain particulars materials different from those described in the specifications were used in the construction of the building, but it was testified by some of the witnesses that those so used were as good as the materials which were specified.It was admitted, also, that the building was not completed and turned over within the time specified by the contract.On this point the evidence was conclusive as to the fact that the work on the building was not commenced for a considerable period of time after the contract had been entered into, but was commenced in time to have completed it on the date called for by the contract, but that delays were occasioned for the want of material, and, for a considerable time after work was commenced, by excessive rain and general bad weather.The evidence of the defendant tended to show use of materials different from those specified, and also that defective material was used in the construction, in consequence of which she suffered loss; that a considerable sum of money would be required to put the building in the same condition that it would have been had proper materials been used in its construction, and the work properly done; that the building was never fully completed by the contractor, and possession was not delivered until February 15, 1899.Evidence was also introduced in reference to the value of the building for rental purposes; and by the plaintiff to the fact that the material, which differed from that named in the specifications, was placed in the building with the approval of Blanton, the superintendent, and G. H. Cannon, the agent, of the defendant.Concerning this agency, Cannon testified that he represented Mrs. Cannon, his wife, in the construction of the building.The jury returned a verdict for the plaintiff for $1,492.50, and established a lien for the same on the building.The defendant made a motion for a new trial on several grounds; among others, that the verdict was contrary to law and the evidence in the case.The motion was overruled, and defendant excepted, and assigns such refusal as error.Inasmuch as there is to be another trial of the case, we express no opinion on these grounds of the motion.

1.The first 10 grounds of the amended motion will be considered together, inasmuch as each of them refers to instructions given to the jury in reference to the power of Blanton superintendent, and Hunt, agent, to change the character of material specified in the contract.Among the charges of which complaint is made is the following: "Now, with reference to Mr. Blanton, who, it is contended here, was agent of defendant for the purpose of superintending the building, and seeing to it that nothing but good material was placed in there, and that the work was done in a workmanlike manner, I charge you that every patent defect--that means every defect that might have been seen, or that Blanton could have seen, by the exercise of ordinary care in looking after the building, and that he did see and acquiesced in (though it might have been changed from the specifications and the contract)--would be binding upon these defendants, and especially so if you find and believe that she knew of it, or that her husband acting for her knew of it, and acquiesced in it, at the time.Or in other words, if material was used in the building by and with the consent of Blanton, and especially so if Cannon, acting as agent for defendant, knew of it, and was consulted about it, and it was inferior material, and the house was completed in that way, then the defendant would be estopped from now denying and saying it wasn't built in accordance with the specifications."It will be noted that in this instruction the jury were specifically told that if Blanton agreed that other material than that specified in the contract should be used in the building, or if Cannon, acting as agent for defendant, knew of the change, and the material used was inferior to that specified in the contract, the defendant was bound.By the terms of the contract, Hunt, the intestate, agreed to furnish a particular kind of material, and construct the house for defendant in a workmanlike manner, and on her part the defendant agreed that if he would do so she would pay him a given sum of money.Each were bound to perform the terms of...