Cleveland v. Schwaemmle

• Decision Date: 13 November 1957
• Docket Number: No. 36921,No. 1,36921,1
• Citation: Cleveland v. Schwaemmle, 101 S.E.2d 611, 96 Ga.App. 724 (Ga. App. 1957)
• Parties: R. E. CLEVELAND v. F. J. SCHWAEMMLE
• Court: Georgia Court of Appeals

Page 611

101 S.E.2d 611

96 Ga.App. 724

R. E. CLEVELAND v. F. J. SCHWAEMMLE.

No. 36921.

Court of Appeals of Georgia, Division No. 1.

Nov. 13, 1957.

Rehearing Denied Dec. 2, 1957.

Syllabus by the Court

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.

F. J. Schwaemmle filed a suit against R. E. Cleveland for breach of contract.

The petition alleged in part: On or about January 1, 1956, the plaintiff and the defendant entered into an oral agreement whereby the defendant agreed to pay the plaintiff $625 per house plus one-half of the profit on each house over and above the first $1,500 of profit, for services to be rendered by the plaintiff to the defendant in suspervising the construction of four houses known as numbers 3061, 3057, 3031 and 3015 Remington Street, East Point, Georgia; the plaintiff has completed his services in supervising the construction of the four houses except insofar as 3015 Remington Street is concerned, which house lacks some $200 worth of labor and material to complete and which labor and material have never been furnished by defendant; although payment of the indebtedness has been demanded, the defendant fails and refuses to pay the same; wherefore the plaintiff prays: that process issue requiring the defendant to be and appear at the next term of court to answer the complaint; that the plaintiff have judgment against the defendant for $2,500 principal, interest at the rate of 7% from this date of the petition and costs.

The defendant filed an answer in which he alleged: that the contract entered into by the parties was that the plaintiff was to receive two-fifths of the net profits; that the plaintiff agreed to keep the costs of construction to a minimum consistent with good building practices; that the plaintiff bought materials at a cost which was in excess of that which was usually used in the type houses being constructed, 'that the plaintiff, without any excuse, walked off the job leaving unfinished the interior trim work, the rebuilding of the basement steps, the glazing of the basement windows, the installation of roof vents, and with no hardware on the windows.'

On the trial the jury returned a verdict for the plaintiff in the amountof $2,500 principal and $87.50 interest. The defendant's motion for new trial was denied, and he excepts.

William F. Lozier, Poole, Pearce & Hall, Atlanta, for plaintiff in error.

W. S. Northcutt, Edwin R. Johnston, Northcutt, Edwards & Johnston, Atlanta, for defendant in error.

QUILLIAN, Judge.

1. Special grounds 1 and 2 of the amended motion for new trial assign as error the following charge: 'Gentlemen, if you find this contract to be as contended by the plaintiff, and as expressed in his petition, as amended, then you should go no further, for in that event, the plaintiff would be entitled to recover the amount sued for, since the measures of recovery, if you find the contract to be as plaintiff contends it to be, are fixed by that contract, and the court and jury would be bound by the measure of damages plead, provided, you find that the plaintiff's version of the contract be correct, and you set it up as governing in this case.'

The defendant testified that the plaintiff failed to complete house No. 3015 and he was forced to have the remaining work done himself.

The charge was error because it instructed the jury that if they found the contract to be as contended by the plaintiff then they should go no further, for in that event, the plaintiff would be entitled to recover the amount sued for. To entitle the plaintiff to a recovery under the contract it was also necessary that he prove that he had complied with its terms or had been prevented from doing so by the defendant. Bennett v. Burkhalter, 128 Ga. 154, 57 S.E. 231.

2. Special grounds 3 and 4 insist that the trial judge erred in...