Gymco Const. Co., Inc. v. Architectural Glass & Windows, Inc., 88-8605

• Decision Date: 29 September 1989
• Docket Number: No. 88-8605,88-8605
• Citation: 884 F.2d 1362
• Parties: GYMCO CONSTRUCTION COMPANY, INC., Plaintiff-Appellee, v. ARCHITECTURAL GLASS & WINDOWS, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1362

884 F.2d 1362

GYMCO CONSTRUCTION COMPANY, INC., Plaintiff-Appellee, v. ARCHITECTURAL GLASS & WINDOWS, INC., Defendant-Appellant.

No. 88-8605.

United States Court of Appeals, Eleventh Circuit.

Sept. 29, 1989.

Peter R. Weisz, Robinson & Weisz, Robert C. Port, Atlanta, Ga., for defendant-appellant.

Geoffrey H. Cederholm, Alston & Bird, Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HILL and COX, Circuit Judges, and SNEED ^*, Senior Circuit Judge.

PER CURIAM:

Architectural Glass & Windows (AGW) appeals the district court's award of damages to Gymco Construction Company (Gymco), on the grounds that AGW breached its contract by failing to install materials for a building faade. We reverse the award of damages to Gymco, and remand for consideration of AGW's counterclaim.

I. FACTS AND PROCEEDINGS BELOW

Gymco was the general contractor for the construction of an exercise salon in Atlanta, Georgia. One of its numerous subcontractors was AGW. On February 21, 1985, the two parties contracted for the installation of a mirrored glass faade, as well as other glass fixtures, for the building. This contract was in writing and executed by the respective presidents of each company. The contract required AGW to complete its work by May 7, 1985, subject to the receipt of approved shop drawings from Gymco and delivery of materials. One of these drawings was a template showing the locations of holes to be drilled in the glass faade so that a sign could be anchored to the building. The contract also included a provision requiring any changes to be made by written orders signed by authorized officers of the two companies. The total value of the contract was $108,169, $72,586 of which was for installation of the mirrored faade.

Gymco contracted with another subcontractor, Maltese Sign Company (Maltese), to supply the template needed by AGW. Although scheduled to arrive by February 27th, this template was not actually delivered until April 4th, five weeks later. By this time, it was impossible for AGW to finish the glass installation by its May 7th deadline. A meeting was held on April 18 Throughout May, Young assured Gymco representatives that the steel had been ordered and would be installed soon. On May 31, 1985, Gymco's president, Blaine Leidy, was supervising the work on the job site. He had been told that AGW would install the steel that day. When no one from the company appeared at the job site, Leidy phoned AGW and spoke with its president, Robert Newbern. Newbern denied any knowledge of an agreement to install stainless steel, and when he learned that Young had agreed to this modification he terminated Young immediately. On June 3rd, Newbern informed Gymco that AGW would not install the stainless steel because it was more expensive than glass, and outside the scope of the company's expertise. AGW did continue to perform its other contract duties, however, until barred from the job site by Gymco in July 1985.

to address the installation problems caused by the delay. At this meeting William Young, an employee of AGW, offered to explore the possibility of switching from mirrored glass to stainless steel, a material that could be furnished and installed more quickly. Young sent Gymco samples of the steel and shop drawings of the building with a stainless steel faade. No written agreement was executed by the parties documenting this change, nor was there any indication that Young's superiors at AGW were aware of it.

Gymco then contracted with Louis Hoffman, Inc., to supply and install the steel panels for the building faade. The contract price was $50,414 higher than the $72,586 allotted in the original contract with AGW. In March, 1986, Gymco filed a breach of contract action against AGW for this difference in price. AGW counterclaimed for damages it claims resulted when Gymco interfered and prevented it from completing its contract obligations.

The district court found that AGW was discharged from its duty to install the mirrored glass faade by the nonoccurrence of a condition precedent, i.e., the delivery of the template by Maltese by February 27, 1985. The court rejected AGW's argument that the failure to deliver the template in a timely manner amounted to a breach by Gymco. The court found that the remaining terms of the written contract were still valid, and that Young's actions created an "oral contract, as to one task only," the installation of the stainless steel instead of mirrored glass. Thus, the total contract was partially written and partially oral. The court held AGW had breached the agreement by refusing to install the steel, and awarded damages to Gymco. AGW appeals and we reverse.

II. JURISDICTION

The district court had jurisdiction under 28 U.S.C. Sec. 1332(a) (1982). This court's jurisdiction rests on Sec. 1291.

III. STANDARD OF REVIEW

The district court's interpretation of the original contract is a question of law which we review de novo. Brewer v. Muscle Shoals Bd. of Educ., 790 F.2d 1515, 1519 (11th Cir.1986). The court's determination that Young had the authority to act as AGW's agent in modifying the original contract, or making a new contract for substitute performance, is reviewed under the clearly erroneous standard. See Cavic v. Grand Bahama Dev. Co., 701 F.2d 879, 887 n. 4 (11th Cir.1983); Bogue Electric Mfg. Co. v. Coconut Grove Bank, 269 F.2d 1, 4 (5th Cir.1959).

IV. ANALYSIS

A. Breach of the Written Contract

Despite the terms of the contract, the parties agree that AGW's duty to install a mirrored glass faade was discharged when it failed to receive the template on time. The delivery of the template was a condition precedent to AGW's duty to install the glass faade. Under Georgia law, the nonoccurrence of a condition precedent discharges the obligor's duty to We disagree, however, with the district court's conclusion that Gymco, on its part, did not breach the agreement by failing to deliver the template in a timely fashion. Under the terms of the written contract, Gymco promised to deliver the template to AGW on time. Instead, it arrived over five weeks late. Gymco cannot escape responsibility for this delay by claiming that it delegated this duty to a third party. Gymco's decision to use a third party to produce the template does not relieve it of its obligation to AGW. See Wood v. Brunswick Pulp & Paper Co., 119 Ga.App. 880, 884, 169 S.E.2d 403, 406 (1969) (Felton, C.J., concurring); 4 A. Corbin, Corbin on Contracts Sec. 866, at 452 (1951). We find that Gymco did breach the contract by failing to insure delivery of the template by the date specified. See Highland Inns Corp. v. American Landmark Corp., 650 S.W.2d 667, 673-74 (Mo.App.1983); Restatement (Second) of Contracts Sec. 225(3) (1979).

                perform. 1   See Mutual Benefit Health & Accident Ass'n v. Hulme, 57 Ga.App. 876, 883, 197 S.E. 85, 89 (1938);  accord Merritt Hill Vineyards, Inc. v. Windy Heights Vineyard, Inc., 61 N.Y.2d 106, 112-13, 460 N.E.2d 1077, 1081, 472 N.Y.S.2d 592, 596 (1984);  Restatement (Second) of Contracts Sec. 225(2) (1979).  Thus, AGW did not breach the written contract when it failed to install a glass faade
                

Despite Gymco's breach, AGW continued to perform the other components of the contract not involving the building faade. Thus, AGW waived whatever right it may have had to terminate the contract after Gymco's breach. See Pearson v. George, 209 Ga. 938, 945-46, 77 S.E.2d 1, 7 (1953); Precision Label Indus., Inc. v. Jones, 185 Ga.App. 161, 163, 363 S.E.2d 605, 607 (1987). AGW, however, on the record before us, did not surrender its cause of action for such damages as the delay in delivery of the template may have caused. The terms of the written contract remained in force, with the parties still obligated to perform the other specified duties. Therefore, AGW properly continued to perform its duties other than installing the faade until barred from the job site by Gymco in July 1985. By barring AGW from the construction site, Gymco may have breached the contract again depending on whether its actions were justified. We do not reach this issue, which is the subject of AGW's counterclaim, and remand this portion of the appeal to the district court for its reconsideration.

B. The Oral Agreement

The heart of Gymco's case is that the parties orally agreed to use a stainless steel faade in lieu of a glass one and that AGW's failure to perform was a breach of the oral agreement that entitled Gymco to terminate the contract and sue for damages. Specifically, Gymco argues that on April 18, 1985, Young, an AGW salesman, acting as an agent of AGW, contracted to install a stainless steel faade. Gymco contends that Young's agreement was either a new contract that partially superseded the written agreement or an oral modification of the existing contract. AGW argues that Young lacked the authority to enter into a new oral contract and that if the agreement was an oral modification it was ineffective because it was not in writing.

The district court held that the oral agreement substituting stainless steel for mirrored glass was a new oral contract. Implicitly, it found that Young had the requisite authority to make the new contract. This implicit holding was in error. It is not supported by the facts and contradicts Georgia's law of agency. We hold that Young lacked the authority to enter

into a new contract obligating AGW to install the stainless steel. We further hold that, even if the oral agreement was only a modification of the contract, it was ineffective because it was not in writing.

1. Young's authority to make a new oral contract

AGW is not bound by Young's agreement without proof of an agency relationship. See Scott v. Kelly-Springfield Tire Co., 33 Ga.App. 297, 297-98, 125 S.E. 773, 773 (1924). Gymco has the burden of proof on this issue. See Carter v. Kim, 157 Ga.App. 418, 418, 277 S.E.2d 776, 776 (1...