Howell v. Ayers

• Decision Date: 27 September 1973
• Docket Number: No. 48560,No. 3,48560,3
• Citation: 202 S.E.2d 189,129 Ga.App. 899
• Parties: W. W. HOWELL, Jr. v. John C. AYERS et al
• Court: Georgia Court of Appeals

Page 189

202 S.E.2d 189

129 Ga.App. 899

W. W. HOWELL, Jr. v. John C. AYERS et al.

No. 48560.

Court of Appeals of Georgia, Division No. 3.

Sept. 27, 1973.

Rehearing Denied Oct. 12, 1973.

Alston, Miller & Gaines, William C. Humphreys, Jr., Atlanta, for appellant.

Katz, Paller & Land, G. Roger Land, Atlanta, for appellees.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

W. W. Howell, Jr., owning a lot on which he desired to have a house built for him, entered into negotiations with John Ayers, president and the only paid employee of Ayers Enterprises, Ltd., a corporation, for the construction of the house. Howell and the corporation entered into a written contract which provided that 'John C. Ayers, Pres., Ayers Enterprises, Ltd., does hereby agree to provide the supervision to construct' the house on a cost-plus-15% basis. John Ayers entered upon performance of the work, hiring the subcontractors, supervising them, etc., and after substantial sums of plaintiff's money had been expended, Howell discharged Ayers and his corporation because of faulty construction work and failure to follow the construction plans. Howell then contracted with another construction company to complete the house and to correct as many of the defects as was economically feasible, although there were many defects which were not economically feasible to correct.

Howell subsequently instituted the present action against Ayers Enterprises, Ltd., and its president and agent, John Ayers, who actually supervised the work, seeking to recover damages resulting from deviation from the plans and unskilful and negligent supervision of the work. At the close of plaintiff's evidence, the trial court directed a verdict for both defendants, and plaintiff appeals. Held:

1. (a) 'As a general rule, there is implied in every contract for work or services a duty to perform it skilfully, carefully, diligently, and in a workmanlike manner.' 17 Am.Jur.2d 814, Contracts § 371. Accord: Doster v. Brown, 25 Ga. 24. 'The law imposes upon building contractors and others performing skilled services the obligation to exercise a reasonable degree of care, skill, and ability, which is generally taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by others of the same profession. Block v. Happ, 144 Ga. 145, 86 S.E. 316; Porter v. Davey Tree Expert Co., 34 Ga.App. 355(2), 129 S.E. 557.' Allied Enterprises v. Brooks, 93 Ga.App. 832(1a), 93 S.E.2d 392. Accord: Housing Authority of City of Carrollton v. Ayers, 211 Ga. 728, 733, 88 S.E.2d 368; Bodin v. Gill, 216 Ga. 467, 472, 117 S.E.2d 325; McKee v. Wheelus, 85 Ga.App. 525, 69 S.E.2d 788; Berston v. Futo, 97 Ga.App. 5, 102 S.E.2d 87; Talerica v. Grove Park Plumbing Service, 103 Ga.App. 591, 120 S.E.2d 36; Mauldin v. Sheffer, 113 Ga.App. 874, 880, 150 S.E.2d 150; Amos v. McDonald, 123 Ga.App. 509, 510, 181 S.E.2d 515. See also Cannon v. Hunt, 116 Ga. 452, 42 S.E. 734; Orkin Exterminating Co. v. Buchanan, 108 Ga.App. 449, 133 S.E.2d 635. 'In a proper case the question of whether the defendant exercised the required degree of skill is, like any other question of fact, to be decided by a jury.' Mauldin v. Sheffer, 113 Ga.App. 874, 880, 150 S.E.2d 150, 155, supra.

( b) The evidence here did not demand a finding that the supervision of the construction work was performed with a reasonable degree of care, skill and ability.

2. There is no merit in the contention that plaintiff took two checks from defendants in full accord and satisfaction of the entire claim. The evidence shows that defendants were drawing on plaintiff's bank account to pay subcontractors and materialmen, that more money had been drawn out than was owed, that some of the money was used to pay accounts on another house, and that the two checks given plaintiff were for these two items of overpayment. Under these circumstances a finding was not demanded that the entire claim sued upon was precluded by accord and satisfaction. See Armour v. Ross, 110 Ga. 403, 35 S.E. 787; National Duck Mills v. Catlin & Co., 10 Ga.App. 240, 243, 73 S.E. 418.

3. Since no sufficient basis has been made to appear to sustain the trial court's direction of a verdict in favor of the defendant corporation, which was a signatory to the contract, that judgment must be reversed.

4. Similarly, since the...