Housing Authority of City of Carrollton v. Ayers, 18940
| Decision Date | 13 July 1955 |
| Docket Number | No. 18940,18940 |
| Citation | 211 Ga. 728,88 S.E.2d 368 |
| Parties | HOUSING AUTHORITY OR CITY OF CARROLLTON v. Sanford M. AYERS et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. While the plaintiff in a mandamus action must have a clear legal right to have performed the particular act which he seeks to have enforced (Powell v. Hansard, 206 Ga. 505, 57 S.E.2d 677), and while mandamus will not, as a general rule, lie to compel the payment of a claim against a public corporation which is unliquidated, unascertained, or doubtful, it will issue in a proper case to compel the payment of a claim against a public corporation where the claim is liquidated and certain. Cox v. Board of Commissioners of Whitfield County, 65 Ga. 741(2); Maddox v. Anchor Duck Mills, 167 Ga. 695(1) (146 S.E. 551); 34 American Jurisprudence 943, § 168.
2. Where, as in this case, the plaintiff's petition alleged that its claim for compensation was due under the terms of a written contract providing for such compensation to be calculated according to fixed mathematical formulas, and that such fees were specifically calculated, submitted to, and approved by the Housing Authority, the contract and calculations made under the terms thereof being attached to the petition as exhibits, and further alleged that the Housing Authority had executed certificates of final acceptance of the completed projects, the petition clearly set up a liquidated claim. Nisbet v. Lawson, 1 Ga. 275, 287; Kelley & McWilliams v. Terhune, Nixon & Company, 113 Ga. 365, 366 (38 S.E. 839); National Surety Corp. v. Orvin, 209 Ga. 878, 880 (76 S.E.2d 705); Block v. Happ, 144 Ga. 145 (86 S.E. 316); Haygood v. Smith, 80 Ga.App. 461(6), 465 (56 S.E.2d 310).
3. While mandamus will not lie where there is another specific legal remedy, Code, § 64-101; Hall v. Martin, 136 Ga. 549, 71 S.E. 803; Bearden v. Daves, 139 Ga. 635(2), 77 S.E. 871; Porter v. Garmony, 148 Ga. 261(3), 96 S.E. 426, yet where, as in this case, the petition alleges, and the statute creating the Housing Authority specifically provides, that all real property of the Housing Authority is totally exempt from levy and sale by virtue of an execution, Code Ann. § 99-1130, and authorizes the Housing Authority to pledge all or any part of its gross or net rents, fees, or revenues to secure the payment of any bonds issued by it, Code Ann. § 99-1127, a suit upon the contract and any judgment rendered therein or execution based thereon would not afford the plaintiff an adequate remedy for the enforcement of its claim. Code Ann. § 99-1128 specifically provides that an obligee of an authority, in addition to all other rights which may be conferred on such obligee, has the right 'By mandamus * * * to compel said authority * * * to perform each and every term, provision and covenant contained in any contract of said authority with or for the benefit of such obligee.' There is, therefore, express statutory provision for the maintenance of the present mandamus proceeding. See, in this connection, Head v. Waldrup, 197 Ga. 500, 509(6) (29 S.E.2d 561); Hogansville Banking Co. v. City of Hogansville, 156 Ga. 855, 859 (120 S.E. 604); Adams v. Town of Weston, 181 Ga. 503, 504 (183 S.E. 69).
(a) The fact that Code Ann. § 99 -1103(m) provides that "Obligee of the authority' or 'obligee' shall include any bondholder, trustee or trustees for any bondholders, or lessor demising to the authority property used in connection with a housing project, or any assignee or assignees of such lessor's interest or any part thereof, and the Federal Government when it is a party to any contract with the authority', does not require the application of the maxim that the expression of one thing implies the exclusion of another, for the reason that a statutory definition of a term as 'including' certain things does not necessarily put a meaning thereon limited to the inclusion. 50 American Jurisprudence 240, § 245.
4. Under the foregoing rulings, the trial judge did not err in overruling the defendant's demurrers to the petition.
5. The trial court properly sustained the plaintiff's demurrers to that portion of the answer dealt with in the 5th division of the opinion.
6. It was error to sustain the demurrers to that portion of the defendant's answer and plea of recoupment dealt with in the 6th division of the opinion.
7. It was error to sustain the general demurrers and to dismiss the entire answer and cross-action of the defendant.
Ayers and Godwin, a partnership (here-inafter referred to as the architect), brought its petition for mandamus absolute to require the Housing Authority of the City of Carrollton, Georgia, created under the 'Housing Authorities Law', Ga.L.1937, p. 210, a public body corporate and politic, exercising public and essential governmental functions, Code Ann. § 99-1115 (), to make payment of a remaining balance due to architect under the terms of a written contract attached to the petition as an exhibit. To the judgment of the trial court overruling the defendant's general demurrers to the petition, sustaining the plaintiff's demurrers to the answer and cross-action, and making the mandamus absolute against the defendant, the Housing Authority excepts.
Robert D. Tisinger, William J. Wiggins, Carrollton, for plaintiff in error.
Candler, Cox, McClain & Andrews, Wright Gellerstedt, Atlanta, Shirley C. Boykin, Carrollton, for defendants in error.
HAWKINS, Justice (after stating the foregoing facts).
1-4. Headnotes 1, 2, 3, and 4 require no elaboration.
5. The defendant, by its answer and cross-action, admitted the execution of the contract, and that the housing project had been completed, but denied liability to the plaintiff, and alleged that, because of the negligent performance of its services by the plaintiff, the defendant had incurred additional construction costs in a sum greatly in excess of the amount claimed by the plaintiff, and sought by way of recoupment to recover damages against the plaintiff. The defendant's cross-action alleged that the plaintiff had negligently failed to provide sufficient footings or foundations for nine of the buildings on the original drawings or specifications of the architect, which deficiency was first discovered after construction was begun at these sites, and necessitated acquisition of additional land by the Housing Authority and revision of the project drawings by the architect so as to relocate nine buildings on the newly acquired land; that the additional cost incurred by the Housing Authority as a result of this shifting of sites totalled approximately four times the amount which the architect seeks to recover, and that the Housing Authority is entitled to judgment on its cross-action against the architect for these added costs. Paragraph 13 of the cross-action alleges: 'That when said contractor began construction of the buildings so designated as aforesaid, it was immediately determined by even superficial examination of the site location of said respective structures that the foundations designed by plaintiff were each and every one insufficient, inadequate and unsafe and would not support or bear the buildings designed by plaintiff at the site located by plaintiff and on the foundations planned and designed by plaintiff'; but, in paragraph 14 of the cross-action, it is alleged that this negligence consisted of the architect's 'failure to determine the soil structure,' and, in paragraph 24, in its 'neglect in examination of sites.' These allegations are insufficient to charge the architect with any negligence when viewed in the light of paragraphs 2 and 3 of the contract entered into between the architect and the Housing Authority, for, under the terms of this contract, the duty and responsibility of selecting the sites for the project and of ascertaining the subsoil conditions within the site area rested upon the Housing Authority, and not upon the architect....
To continue reading
Request your trial
-
Denton v. Browns Mill Development Co., S01G0515.
...Third Int'l Dictionary, 924 (1961). 5. OCGA § 51-5-7. 6. OCGA § 9-11-11.1(c) (emphasis supplied). 7. Housing Auth. of City of Carrollton v. Ayers, 211 Ga. 728, 729-730, 88 S.E.2d 368 (1955). 8. Black's Law Dictionary, 7th ed., p. 766 (1999) (include: "[t]o contain as a part of something"); ......
-
Flintkote Co. v. Dravo Corp.
...v. Bob, 115 Ga.App. 127, 153 S.E.2d 641 (1967); Bodin v. Gill, 216 Ga. 467, 117 S.E.2d 325 (1960); Housing Authority of the City of Carrollton v. Ayers, 211 Ga. 728, 88 S.E.2d 368 (1955); Block v. Happ, 140 Ga. 145(2), 86 S.E. 316 (1915).4 The law of Georgia "imposes upon persons of profess......
-
Southern Land, Timber & Pulp Corp. v. Davis & Floyd Engineers, Inc.
...this Code section unless he can ascertain whether the contract sued on is in writing or not? 1 See Housing Authority of City of Carrollton v. Ayers, 211 Ga. 728, 733(6), 88 S.E.2d 368 and Bodin v. Gill, 216 Ga. 467, 472(1), 117 S.E.2d 325 where the language 'persons performing architectural......
-
Hudgins v. Bacon
...considerations, such as excessively expansive soil], is ordinarily employed by their respective professions.' Housing Auth. v. Ayers, 211 Ga. 728, 733, 88 S.E.2d 368 (1955)." (Emphasis supplied.) Rhodes-Haverty Partnership v. Robert etc. Assoc., 163 Ga.App. 310, 311-312, 293 S.E.2d 876. Thi......
-
Differing site conditions: liability precautions for design professionals.
...ed.), which suggests certain provisions that also will serve these objectives. (18.) See generally Housing Auth. of Carrollton v. Ayers, 88 S.E.2d 368, 371 (Ga. 1955); Pittman Constr. Co. v. City of New Orleans, 178 So.2d 312 (La.App. 1965), appeal dismissed, 179 So.2d 274 (La. 1965). (19.)......
-
Accountant Liability to Third Parties in Georgia
...311, 293 S.E.2d at 877-78. [9] Id. at 310-11, 293 S.E.2d at 877-78. [10] Id. at 311-12, 293 S.E.2d at 878 (quoting Housing Auth. v. Ayers, 211 Ga. 728, 733, 88 S.E.2d 368, 373 (1955)). [11] Id. at 312, 293 S.E.2d at 878. [12] Id. at 313, 293 S.E.2d at 879 (Deen, J., dissenting). [13] Robert......