Doyle v. Estes Heating & Air Conditioning, Inc., 69411

Decision Date15 February 1985
Docket NumberNo. 69411,69411
Citation173 Ga.App. 491,326 S.E.2d 846
CourtGeorgia Court of Appeals

Glenville Haldi, Atlanta, for appellant.

Martin R. Salzman, Sharon A. Gay, Atlanta, for appellee.

McMURRAY, Presiding Judge.

Plaintiff, Estes Heating and Air Conditioning, Inc., brought suit against defendant, Eugene Doyle, in the State Court of Fulton County. In its complaint, as amended, plaintiff alleged that it contracted with defendant to install a furnace and an air conditioning unit in a condominium owned by defendant; that it completed the job in a workmanlike manner according to the specifications of the contract; that "all conditions precedent had been performed or have occurred or have been excused"; that defendant failed or refused to make payments pursuant to the contract; and that defendant owed plaintiff the sum of $2,600 pursuant to the contract. Defendant answered the complaint, denying generally the material allegations thereof, and asserting total and partial failure of consideration defenses.

The contract between the parties took the form of an invoice. It called upon the customer to "Pay Serviceman: $2600.00." With regard to the "Work Performed," the contract simply stated: "Replace condenser and matching line set & coil and furnace." Finally, concerning the "terms" of payment, the contract provided: "Net on job completion."

In order to install the equipment in the condominium, it was necessary for plaintiff to cut a hole in the bathroom wall. Following the installation, the hole in the bathroom wall remained. Plaintiff took the position that it was defendant's responsibility to repair the bathroom wall. It was defendant's contention, on the other hand, that the wall was to be repaired by plaintiff.

Upon the trial of the case, plaintiff's employee testified the contract did not require plaintiff to repair the bathroom wall. He averred that when he told defendant it would be necessary to cut the hole, "[defendant] said this would be no problem, that I could cut a hole in his wall into the bathroom, and I did. And he said he would take care of it." Defendant denied that he ever suggested he would fix the hole. On the contrary, he testified: "I assumed if they took the wall down they would fix it. When they said they would have to put the hole in the wall, I assumed they would fix it." Finally, defendant averred that when plaintiff finished the installation, he was told that plaintiff would be back later to fix the hole.

It was undisputed that defendant made no payments to plaintiff whatsoever. Defendant offered no evidence concerning the cost of repairing the bathroom wall. He maintained, however, that he was not liable to plaintiff in any amount until the wall was repaired and the job was completed.

Upon the close of the evidence, plaintiff moved for a directed verdict. The motion was granted and a verdict was returned for plaintiff in the amount of $2,600. Judgment was entered upon the verdict and defendant appealed. Held:

1. "Where a complainant alleges generally that all conditions precedent have been performed or have occurred and the defendant denies that allegation only generally and the complainant fails to insist upon the right to a specific and particular denial of complainant's general allegation, the general allegation stands denied by the general denial and the requirement of proof of performance of conditions precedent remains in effect just as it would if there had been no allegation in the complaint as to conditions precedent." McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 513, 250 S.E.2d 424. Thus, defendant's general denial of plaintiff's allegation that all conditions precedent were performed was sufficient to require plaintiff to prove the completion of the job.

2. Plaintiff contends that since the written contract only provided for the installation of the equipment, defendant cannot maintain that it was incumbent upon plaintiff to repair the bathroom wall in order to complete the job. We disagree.

"The general rule is that parol evidence is inadmissible to add to, take from, vary or contradict the terms of a written instrument. Code §§ 38-501, 20-704(1) [OCGA §§ 24-6-1, 13-2-2(1) ]. However, 'if there is an ambiguity, latent or patent, it may be explained; so if a part of a contract only is...

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9 cases
  • Carolina Indus. Products, Inc. v. Learjet, Inc.
    • United States
    • U.S. District Court — District of Kansas
    • December 18, 2001
    ... ... of the parties herein that no such terms existed."); Doyle v. Estes ... Page 1175 ... Heating & Air Conditioning, ... ...
  • McDevitt & Street Co. v. K-C Air Conditioning Service, Inc.
    • United States
    • Georgia Court of Appeals
    • March 18, 1992
    ...evidence introduced, with all reasonable deductions, demands a particular verdict. OCGA § 9-11-50(a)." Doyle v. Estes Heating, etc., Inc., 173 Ga.App. 491, 493(3), 326 S.E.2d 846 (1985). The evidence is construed most favorably to the nonmovant. Davis v. Glaze, 182 Ga.App. 18, 354 S.E.2d 84......
  • Towles v. Cox
    • United States
    • Georgia Court of Appeals
    • December 5, 1986
    ...defendants. The trial court did not err in failing to grant defendants' motion for a directed verdict. See Doyle v. Estes Heating & etc., 173 Ga.App. 491, 493(3), 326 S.E.2d 846; United Fed. Savings & etc., Assn. v. Connell, 166 Ga.App. 329, 330(1), 304 S.E.2d 2. In their second and third e......
  • Smith v. Allen
    • United States
    • Georgia Court of Appeals
    • October 21, 1986
    ...a particular verdict. OCGA § 9-11-50(a); Mercer v. Woodard, 166 Ga.App. 119, 127 (13) (303 S.E.2d 475)." Doyle v. Estes Heating, etc., 173 Ga.App. 491, 493-494 (3), 326 S.E.2d 846. In the case sub judice, plaintiff contends the undisputed evidence shows that defendant Shiflet, individually ......
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