Fid. & Deposit Co. Of Md. v. Fine, 26426.

• Decision Date: 23 November 1937
• Docket Number: No. 26426.,26426.
• Citation: 194 S.E. 58,56 Ga.App. 729
• Court: Georgia Court of Appeals
• Parties: FIDELITY & DEPOSIT CO. OF MARYLAND et al. v. FINE.

56 Ga.App. 729

194 S.E. 58

FIDELITY & DEPOSIT CO. OF MARYLAND et al.

v.FINE.

No. 26426.

Court of Appeals of Georgia, Division No. 1.

Nov. 23, 1937.

Syllabus by the Court.

The court did not err in overruling the demurrers to the petition, in allowing the amendment to the petition, in overruling the demurrers to the petition as amended, or in overruling the motion for a new trial.

Error from Municipal Court of Atlanta; Clarence Bell, Judge.

Suit by Sam Fine against the Fidelity & Deposit Company of Maryland and another. Judgment for plaintiff, defendants' motion for a new trial was overruled, and defendants bring error.

Affirmed.

Paul H. Butler and Durwood T. Pye, both of Atlanta, for plaintiffs in error.

Wellborn B. Cody and Jos. J. Fine, both of Atlanta, for defendant in error.

BROYLES, Chief Judge.

The record in this case is voluminous and complicated, and the various assignments of error are, at least in part, interwoven and duplicitous, and can best be elucidated and solved by a partial statement of the pleadings and the evidence. Sam Fine brought suit against East Side Lumber & Coal Company and Fidelity & Deposit Company of Maryland. The petition as amended alleged, in substance, that on or about September 8, 1934, the petitioner was the owner of certain described real estate in the city of College Park, with a building located thereon in which petitioner operates a retail store; that on said date defendant lumber company entered into an agreement with the city of College Park whereby West Main street of the city would be widened, and in so doing the building of the plaintiff (as well as the buildings of others) would be set back, altered, and remodeled; that profert is made of said contract, and same will be produced at the trial; that on the same date the de fendants signed an agreement in the nature of a bond, which is attached to and made a part of the petition; that immediately after the East Side Lumber & Coal Company discontinued the work under said contract, petitioner complained to it concerning the irregular and faulty manner in which said work had been done, and on two occasions, within thirty days after said defendant discontinued the work, petitioner demanded that the faulty condition be corrected, but defendant failed and refused to remedy the same; that said faulty condition consisted of improper flashing and improper joining of roof on the parapet wall, and including the improper replacement of hood over the awning; that by reason of the improper flashings and failure to join the roof on the parapet wall, the inside of petitioner's building and his merchandise therein were subjected to the elements, and, in order to correct this situation, the petitioner employed Gates Bros., general contractors, to repair said building at an expense of $151.84, as shown by an exhibit attached to the petition; that defendant never did complete the contract in accordance with the terms thereof, and the same was not completed on February 24, 1936, when petitioner, in order to prevent further damage, employed Gates Bros. to finish said work and to repair said building in accordance with the manner that defendant was obligated to do it, an itemized statement of what work Gates Bros. did, and the cost of material and labor, being attached to the petition as an exhibit; that in addition to the above charge, petitioner was damaged in the sum of $75 by reason of the faulty workmanship of the defendant East Side Lumber & Coal Company, which caused a seepage of water in petitioner's building, which will require repairs to the extent of $75; that, in addition to the above items of damage, the water seepage in said building damaged petitioner's merchandise to the extent of $176, as shown by an exhibit attached to the petition, which shows the cost price of the goods and the reduced price at which they were sold on account of being damaged; that the cost price shown was the fair market value of the merchandise; that all of said loss was caused by the faulty and irregular workmanship of the East Side Lumber & Coal Company, and that, by reason of the contract hereinbefore referred to, both of said defendants are indebted to petitioner in the sum of $361.84.

The bond attached to and made a part of the petition provides, in part, that the East Side Lumber & Coal Company, as principal, and the Fidelity & Deposit Company of Maryland, as surety, are bound unto the mayor and council of the city of College Park, as obligee; the condition of the obligation being that "said principal has entered into a contract with said Mayor & Council of the City of College Park * * * for the setting back, altering and remodeling of certain buildings on West Main Street in said City of College Park, in accordance with certain drawings, specifications, and amendments thereto, referred to in said contract, and also in accordance with the provisions, terms and conditions of said contract, which said contract is dated the 8th day of September, 1934, and is hereby referred to and made a part hereof"; that the principal would do the work according to the contract and save the obligee from all costs and charges on account of the doing of said work; and that "for a violation of said contract recovery may be had hereon either by obligee or by any property owner whose property is to be set back, altered, and remodeled under said contract." Each defendant demurred to the petition as amended. In their answers they denied the material allegations of the petition, and averred that any damage to the plaintiff's building and merchandise was due to his negligence in allowing snow to accumulate on the roof of the building; that the leaks were due to an act of God; and that all work done on said premises by the defendant was completed more than a year before the plaintiff's cause of action arose; and that the defendant never guaranteed any work for more than twelve months. Each defendant filed a plea of the statute of limitations, and prayed that the case be dismissed. Each also filed "objections to plaintiff's amendment" of the petition. All of the demurrers and objections to the pleadings were overruled, and exceptions pendente lite were filed. The jury found for the plaintiff $178.24, and the court refused to grant a new trial. The bill of exceptions assigns error on all of the rulings of the court. There were 35 grounds of demurrer, and the motion for a new trial contained 14 grounds covering 40 pages of typewritten matter. Many of the objections raised by the pleadings are duplications of objections in another form, and we will discuss only the controlling issues.

The plaintiff testified that he was the owner of the building; that after the defendant contractor finished working on the building it began to rain hard and the whole roof all the way round leaked everywhere, and damaged the hats, shoes, and everything in the store; that he called the contractor but could not make him come, but that finally the defendant told a roofer by the name of Poss to come and fix it; that "in about week or ten days it came another rain, and it flooded me so I couldn't keep nothing in the windows; the ceiling was coming down, the woodwork in the windows got wet, and there was 2¹/₂ inches of water in the windows"; that he again called the contractor and this time sent three negroes to fix the roof, and they too failed to fix it; that he called again, and "Mr. Robinson [President & Treasurer of the East Side Lumber & Coal Co.] told me to go ahead and hire men whom I knew would fix it"; that plaintiff then hired Gates Bros., who properly repaired the building, and plaintiff paid Gates $151.84; that he suffered damage to his store and merchandise in the summer and.fall of 1935, and the first of the year in 1936; that before the time he had the roof fixed, men's goods, ladies goods, and shoes would get wet in the windows, and he would have to take them out, put them on tables, and sell them for whatever he could get for them; that in keeping a record of these losses he "put down the losses from the cost, and not from the profit"; and that when the contractor finished working on the building, the job "was not completed" in accordance...