Clark's Super Gas, Inc. v. Tri-State Systems, Inc.

• Court: Georgia Court of Appeals
• Writing for the Court: QUILLIAN; BELL, C.J., and DEEN
• Citation: Clark's Super Gas, Inc. v. Tri-State Systems, Inc., 200 S.E.2d 472, 129 Ga.App. 650 (Ga. App. 1973)
• Decision Date: 17 September 1973
• Docket Number: No. 48222,TRI-STATE,No. 1,48222,1
• Parties: CLARK'S SUPER GAS, INC. v.SYSTEMS, INC

Page 472

200 S.E.2d 472

129 Ga.App. 650

CLARK'S SUPER GAS, INC. v. TRI-STATE SYSTEMS, INC.

No. 48222.

Court of Appeals of Georgia, Division No. 1.

Sept. 17, 1973.

Albert A. Roberts, East Point, for appellant.

J. Norwood Jones, Jr., Lewis N. Jones, Atlanta, for appellee.

Syllabus Opinion by the Court

QUILLIAN, Judge.

Tri-State Systems, Inc. brought this action in the Civil Court of Fulton County against Clark's Super Gas, Inc. seeking to recover a balance alleged to be due under a contract. The contract provided that the plaintiff would furnish 3 advertising signs for the defendant; the signs were to be located near specified exits on Interstate Highway 75. The contract provided that the term would be for 36 months and provided a total payment of $380 per month for the 3 signs. The contract expressly stipulated that the signs would be 'illuminated all night.'

The defendant answered denying the material allegations of the complaint and included a counterclaim against the plaintiff in the amount of $126.67. After discovery proceedings the case came on for trial before the judge sitting without a jury. During the trial it was brought out that the plaintiff was unable to construct 2 of the signs and that the action in fact was to recover the monthly price of one of the signs which was located at the proper place but was not illuminated. The amount sought was $126.67 per month for the term of the contract. This was a total of $4,560.12. After hearing evidence, the trial judge entered a judgment finding for the plaintiff in the amount of $2,216.72. Appeal was taken from this judgment. Held:

Code § 20-112 provides: 'A contract may be either entire or severable. In the former, the whole contract stands or falls together. In the latter, the failure of a distinct part does not void the remainder. The character of the contract in such case is determined by the intention of the parties.' See Barnes v. Goodner, 77 Ga.App. 448(1a), 49 S.E.2d 128; Spalding County v. Chamberlin & Co., 130 Ga. 649, 654, 61 S.E. 533. Aside from the fact that a problem is presented as to whether each of the individual signs was severable from the contract as a whole, the controlling question here is the fact that a basic prerequisite of the contract, to wit, that the signs be illuminated was not complied with. It was incumbent upon the plaintiff to establish that it had complied with the conditions of the contract. See Code § 20-110. 'The plaintiffs had the burden of proving that they performed the contract according to its terms, or for some legal reason such performance on their part was as a matter of law excused.' Friedman v. Goodman, 222 Ga. 613, 617, 151 S.E.2d 455, 458. See Mutual Benefit Health & Accident Assn. v. Hulme, 57 Ga.App. 876, 883, 197 S.E. 85; Irvindale Farms v. W. O. Pierce Dairy, 78 Ga.App. 670, 685, 51 S.E.2d 712. In the absence of such proof the plaintiff could not recover under the express terms of the contract. 'A person who seeks recovery under an alleged executed contract must show performance on his part or that his nonperformance was caused by the act or fault of the opposite party.' Cleveland v. Schwaemmle, 96 Ga.App. 724, 101 S.E.2d 611. The plaintiff failed to show a legal reason to excuse its nonperformance or that such was caused by the act or fault of the defendant.

There was no evidence in the record sufficient to establish a novation or a parol contract between the parties. The proof offered tended to show that the parties were in disagreement as to the location of the signs and that no agreement was ever reached as to the non-illuminated...