McDaniel v. Georgia Consol. Contracting Co., 595.

Decision Date12 May 1952
Docket NumberNo. 595.,595.
Citation110 F. Supp. 751
CourtU.S. District Court — Southern District of Georgia

Kennedy & Bulloch, Manchester, Ga., for plaintiff.

Myrick & Myrick, Savannah, Ga., for defendant.

SCARLETT, District Judge.

This cause comes on before the Court on written exceptions filed by Counsel for the defendants to the findings of a Master, Mr. J. Allen Tison, appointed by an order of this Court, dated February 12, 1952. This order stipulated that the Master should hear and determine the issues of fact that might arise in the case under the pleadings and under the evidence, and further, that "any questions of law that may arise on the hearing before said Master shall be certified by the Master to the Judge of this Court, and there determined."

It appears from the Master's report and from the pleadings and from the evidence, both oral and documentary, that this was an action by the McDaniel Construction Company against the defendant, upon a written contract which was in the nature of a sub-contract for work to be done for the Corps of Engineers of the United States Army on certain buildings at Camp Stewart, Georgia, an Army Post.

This sub-contract was not for any specified amount of money. It merely fixed unit prices for various repair jobs on old buildings at Camp Stewart, a military reservation of the Government. The exact work and the amount therefor was, under the pleadings and under the evidence, to be designated by the Inspectors of the Government under the Chief Inspector, J. G. Keller, and was to be approved by these Inspectors.

It further appears that the defendant, the Georgia Consolidated Contracting Company, Incorporated, had a general written contract with the Corps of Engineers, U. S. Army for a large amount of work at Camp Stewart, and that by sub-contract it let a portion of the work to the plaintiffs. An examination of this sub-contract discloses that it is on a printed form used by the City of Atlanta, Georgia, and used words such as "Architect" and "Owner," which do not very well apply to the actual parties to the contract.

There appears in the body of the contract certain words, typewritten, some of which are as follows: "Work to be conducted in each building as approved by the Officer in Charge * * *. Any additional items to be authorized by the Contracting Officer other than shown in the Schedule Breakdown will be based on a unit price figure and approved by the Contracting Officer."

Then in a printed paragraph of the contract, as appears in Item 4, it is stipulated "that all work shall be done in a good and workmanlike manner and shall be subject to the inspection, approval and acceptance of the contractor." After that, the following words appear, typewritten: "Corps of Engineers, U. S. Army." There then follow these words, "The approval and acceptance of such work performed by said subcontractor shall be left to the decision of: First, the contractor; second, the architect, and third, the owner."

It is settled law in interpretation of contracts that "where parts of a contract * * * are in writing and other parts * * * are printed, the parts in writing are to be given the greater weight", Shackelford v. Fitzgerald, 151 Ga. 35, 105 S.E. 597, 599. And further, that "a clause written on the face of a contract inconsistent with one printed upon the back will generally be accepted as expressing the intention of the parties". Caddick Milling Co. v. Moultrie Grocery Co., 22 Ga.App. 524, 96 S.E. 583. And further, the "Written portion of contract prevails over printed portion, where it cannot be reconciled therewith." Capital Wall Paper Co. v. Callan Court Co., 38 Ga.App. 428, 144 S.E. 135.

The Master in his written report found that the McDaniel Construction performed work upon various buildings at Camp Stewart under a contract aggregating the sum of $61,175.76, according to written invoices which were attached to the original petition of the plaintiffs and which were identified by the defendant and introduced in evidence, numbering 165, and these invoices were numbered from one to 165 inclusive, and each one specified the amount of work done and the price therefor, and the date on which the invoices were rendered, the invoices being weekly, from September 29, 1950 to the 19th of January, 1951. Included in the above figures the Master also found that the defendant owed the plaintiffs three items for overtime to employees to difference of rate of pay on roofers in two instances, the invoices being Numbers 163, 164 and 165, and being rendered on the dates specified, $317.44, $284.60, and $255.15 respectively.

The Master further found and reported that on this amount of $61,175.76, the defendant had paid the plaintiffs $55,965.76, which left a balance due under the contract of $5,210. He further found that the defendant admitted paying plaintiffs the sum of $55,965.76, and that after making allowance for a certain credit admitted by the plaintiff to be due the defendants, he found and ruled that the defendant owed the plaintiff the sum of $5,034.76, with interest from April 1, 1951, at the rate of seven (7) per cent per annum.

He further reported that the Official Stenographer who transcribed the evidence rendered a bill for $160, and he requested that the Judge of this Court assess the bill of the said Reporter, F. B. Thigpen, as a part of the costs in the case, and that the Court fix the compensation of the Master.

To these findings the defendant filed certain written exceptions within the time provided by the Rules of Civil Procedure, 28 U.S.C.A. The principal ground of the exceptions was that the work had not been approved by the Corps of Engineers of the United States Army, as provided in the contract, and that the burden of proof was upon the plaintiffs to show by evidence that all of the work which plaintiffs contended they had performed had been approved in the manner provided in the contract.

The Master further found that all of this work had been approved by the Officer in Charge, as set forth on the first page of the contract, in typewriting, and it also had been approved by the Corps of Engineers, U. S. Army, if that portion of the contract, which in typewriting on page two of the printed contract, applied. The Master's reasons for so holding were that the authorization for the work to be done upon various buildings of various types was made by J. G. Keller, Chief Inspector of the Corps of Engineers, U. S. Army, and his assistants — Frank Wood, Alvin T. Linton, and Cribbs, it appearing from the Master's report that J. G. Keller was still in the employ of the United States Government. The Master then reported that all three of these Inspectors testified and verified verbatim Mr. McDaniel, Sr.'s testimony to the effect that all of the work appearing on the invoices of the McDaniel Construction Company was authorized by these Inspectors and approved by them.

The Master held and so reported that these Inspectors were the duly authorized representatives of the Officer in Charge and of the Corps of Engineers of the United States Army.

While the Master reported that one of the Inspectors did not testify, to-wit, Mr. Cribbs, his report shows that Mr. Keller, Chief Inspector, identified all of the invoices which covered work which Cribbs had inspected, and Mr. Keller placed his initials on these invoices, and testified positively that he knew the work had been done and approved.

In his report the Master used the following...

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4 cases
  • Williams v. Physicians and Surgeons Community Hosp., Inc.
    • United States
    • Georgia Supreme Court
    • June 30, 1982
    ...Ga. 390, 61 S.E.2d 818 (1950); Shackelford v. Fitzgerald, 151 Ga. 35, 39, 105 S.E. 597 (1920). See also McDaniel v. Georgia Consolidated Contracting Co., 110 F.Supp. 751 (S.D.Ga.1952.) (applying Georgia law). The content of the typed portions of the release in this case indicate that the pa......
  • Winchester v. Wells, 17340.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • April 6, 1959
    ...Duval 363, Thompson 191, Fla.Rev.Gen.Stat. 1920 § 3617. 3 Laws of Florida, Acts of 1941, ch. 20954 § 3. 4 McDaniel v. Georgia Consol. Contracting Co., D.C.S.D.Ga.1952, 110 F.Supp. 751, aff. Georgia Consol. Contracting Co. v. McDaniel, 5 Cir., 1953, 202 F.2d 748; Saranac Automatic Mach. Corp......
  • Paschall v. Mooney
    • United States
    • U.S. District Court — Southern District of New York
    • February 14, 1953
    ... ... Merchants' Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520, ... Consol.Laws, c. 67, the statutory assignee of the claims ... ...
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 6, 1953
    ...The motion to dismiss this appeal is overruled, and the judgment appealed from is affirmed for the reasons stated by the district judge, 110 F.Supp. 751. The request for assessment of damages on the appeal is ...

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