Employers Liability Assur. Corp. v. Sheftall
| Decision Date | 14 March 1958 |
| Docket Number | No. 37073,No. 2,37073,2 |
| Citation | 103 S.E.2d 143,97 Ga.App. 398 |
| Parties | EMPLOYERS LIABILITY ASSURANCE CORPORATION, Ltd., et al. v. C. H. SHEFTALL |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where a defendant is sued for an alleged breach of a building contract in that the construction is not according to the specifications therein, and the defendant pleads and offers evidence to show that the departure from the terms of the contract, although it resulted in damage to the plaintiff, is not actionable because authorized by an agent for the plaintiff and that the latter ratified his agent's acts, it is not error to charge that the burden rests upon the defendants to establish the truth of such affirmative defense by a preponderance of the evidence.
2. The evidence in this case presented a contested issue as to the authority of the agent, as well as ratification of the latter's acts on the part of the principal, and accordingly authorized a charge submitting this question to the jury.
3. Where evidence is offered, a part of which is admissible and another part inadmissible, an objection to the whole is not sufficiently definite to form the basis of an assignment of error.
4. Parol testimony that certain provisions not appearing in the contract as such were incorporated therein by reference would be subject to objection, but where no such objection is offered, it is not error to admit the evidence and thereafter refuse a requested charge that the testimony is not before the jury for consideration.
5. The expenses of litigation under Code § 20-1401 may be awarded in a proper case for bad faith, stubborn litigiousness, or where the defendant has caused the plaintiff unnecessary trouble and expense, and it is only necessary for the plaintiff to show that any one of these three conditions exists. In the present case it was not error to allow attorney fees on the ground that the defendants had caused the plaintiff unnecessary trouble and expense, where it appeared that shortly after the plaintiff accepted the house constructed for him by the defendants, he discovered a defective condition due to water leaks and promptly notified the defendants thereof; that notwithstanding the plaintiff's continued efforts for a period of more than a year to have the condition corrected, the defendants failed to correct the defects and by their statements and actions kept the plaintiff from having it fixed by others, and that as a result there accumulated other considerable damage to the interior of the house.
C. H. Sheftall filed an action for damages for breach of contract in the Civil Court of Bibb County against R. L. and E. F. Johnson and the surety on their bond, Employers' Liability Assurance Corporation, Ltd., alleging that the defendants had contracted with the plaintiff to build and had built and delivered to him a house; that the plaintiff had complied with all his obligations under the contract; that the defendants had failed to comply with certain of the specifications attached to and made a part of the building contract, particularly in regard to the construction of the chimney, and as a result the plaintiff sustained a large amount of water damage due to rain water entering around the chimney on several occasions after he moved into the house. The defendants were notified and made efforts to correct the damage which proved ineffectual. The defendants' surety was then called upon to perform. Eventually the plaintiff hired another firm to correct the construction work and repair the areas damaged by rain water, the amount spent for this purpose being his alleged measure of damages, and the plaintiff also sought the recovery of attorney's fees in this action on the ground that the defendants had been stubbornly litigious and caused him unnecessary trouble and expense. Special demurrers attacking the petition on the ground that no facts were alleged authorizing an award of attorney's fees were overruled.
On the trial the evidence on behalf of the plaintiff was to the effect that he had employed an architect who had supervised the construction of the house; that the chimney had been improperly constructed in the first instance and on this fact being pointed out the defendants rebuilt it in a larger size to accord with the specifications; that after it was rebuilt it was defective in several respects, one of which was that metal flashing had not been put around it as required; that an architect cannot actually cover every detail and that the witness who was employed as architect by the owner did not notice this at the time; that the house when finally completed, was accepted by the owner and architect and the balance of payment made; that shortly after the owner moved in, and at the first heavy rain, it appeared that there were bad leaks around the chimney due to its faulty construction contrary to the specifications made a part of the building contract; that both the owner and architect several times notified the defendants as to the defect and called upon them to remedy the defects; that the defendants sent workmen around on several occasions but never did cure the leak and finally ceased their efforts, merely leaving a tarpaulin over the chimney. There was evidence that the defects had been cured by another company employed by the plaintiff, and the cost of this work. The jury returned a verdict for the plaintiff in the amount sued for including $250 as attorney's fees. A motion for a new trial containing by amendment 22 special grounds was denied, and this judgment is assigned as error.
Martin, Snow, Grant & Napier, Macon, for plaintiff in error.
Miller, Miller & Miller, Lawton Miller, Macon, for defendant in error.
1. The plaintiff having in his petition alleged a breach of a building contract in certain specified particulars, and the defendant in his answer having denied the breach of contract and having also alleged: 'These defendants further show that all of said construction was in accordance with, at the instructions of and under the approval of said architect and these defendants are completely released from any liability, having built it in accordance with the instructions of plaintiff's agent', two defensive issues were raised. One was a mere denial that the construction had not been according to contract as alleged by the plaintiff, and the other was a defense, supported by some evidence, that the architect approved the chimney in the condition in which it was actually built, although not in accordance with the specifications, and that the owner ratified all acts of the architect by giving him complete authority to agree to changes in specifications. Under the pleadings and evidence, accordingly, it was not error for the court to charge: 'Where the defendants plead and set up an affirmative defense the burden rests upon such defendants to establish the truth of such affirmative defense by a preponderance of the evidence adduced upon the trial of the case.' Here the plaintiff made out a prima facie case by the introduction of evidence showing that the defendant had not built the chimney according to the building specifications attached to and made a part of the contract, and that as a result thereof damage occurred. The defendant was then entitled to, and did, offer evidence the purpose of which was to show that his failure to follow the specifications with exactitude was not actionable for the reason that it was a variance which had been acquiesced in by an agent of the plaintiff, and that the plaintiff had ratified such acquiescence on the agent's part even though it was unauthorized in the first instance. While the burden of proof remains with the plaintiff throughout the trial, the burden of defense shifts, once the plaintiff has made out a prima facie case, to establish other facts which would negative liability on the part of the defendant. Hanover Fire Ins. Co. v. Pruitt, 56 Ga.App. 777, 2 S.E.2d 123; McCrackin v. McKinney, 52 Ga.App. 519(2), 183 S.E. 831. The rule of law contained in this charge is not restricted to situations in which a defendant admits a prima facie case and pleads matter in confession or avoidance, thus assuming the burden of proof. See Code § 38-103. These grounds are without merit.
2. The court charged in part that the plaintiff denies that Mr. Thompson, the architect, was his agent clothed with authority to authorize and changes...
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