Mion Chemical Brick Corp. v. Daniel Const. Co.

• Decision Date: 24 February 1965
• Docket Number: Nos. 40987,40988,No. 1,s. 40987,1
• Citation: 141 S.E.2d 839,111 Ga.App. 369
• Parties: MION CHEMICAL BRICK CORPORATION v. DANIEL CONSTRUCTION COMPANY, Inc. DANIEL CONSTRUCTION COMPANY, Inc. v. MION CHEMICAL BRICK CORPORATION
• Court: Georgia Court of Appeals

Page 839

141 S.E.2d 839

111 Ga.App. 369

MION CHEMICAL BRICK CORPORATION v. DANIEL CONSTRUCTION COMPANY, Inc.

DANIEL CONSTRUCTION COMPANY, Inc. v. MION CHEMICAL BRICK CORPORATION.

Nos. 40987, 40988.

Court of Appeals of Georgia, Division No. 1.

Feb. 24, 1965.

Rehearing Denied March 18, 1965.

Clifford Oxford, Eugene S. Taylor, Atlanta, for plaintiff in error.

Gambrell, Harlan, Russell & Moye, E. Smythe Gambrell, Edward W. Killorin, John K. Train, III, Atlanta, for defendant in error.

Syllabus Opinion by the Court

PANNELL, Judge.

1. Where a prime contractor, without claiming that the work is covered by the subcontract, orally orders extra work, as such, with notice that the subcontractor regards the work as extra and expects additional compensation therefor, the subcontractor can recover for the work notwithstanding a stipulation of the subcontract requiring a written order therefor. State Highway Dep't. v. Wright Contracting Co., 107 Ga.App. 758, 764, 131 S.E.2d 808; see, generally, Anno. in 66 A.L.R. 649; Bailey v. Martin, 101 Ga.App. 63, 112 S.E.2d 807; cp. Heard v. Dooley County, 101 Ga. 619(2), 28 S.E. 986. Upon application of the above ruling to the pleadings and evidence in the instant case, the trial court erred in directing a verdict in favor of the defendant prime contractor. The evidence was sufficient to authorize a finding that at least some, if not all, of the extra work in performing the subcontract was occasioned by faulty work of the prime contractor, that this condition and the necessity for extra work and expectation of remuneration therefor was conveyed to the authorized representative of the prime contractor, and that such representative authorized the extra work.

2. The allegations of the petition in the instant case were sufficient to set forth a cause of action under the ruling in Division 1 above, and the trial court did not err in overruling the general demurrers thereto.

3. Where, prior to or contemporaneously with the execution of a written contract between a prime contractor and a subcontractor, the prime contractor represents that the area where the sbucontractor will have to work will be dried in or roofed over before the subcontractor will be called upon to begin work, and the written contract recites that, 'The subcontractor agrees to begin work as soon as he is notified by the contractor that the ground is clear or the structure (or structures) far enough advanced to allow the beginning of that portion included herein, and will carry forward and complete his work as rapidly as the contractor may judge that the progress of the structure (or structures) will permit,' and it is not alleged that said prior or contemporaneous oral agreement was the inducement or consideration, in whole or in part, for entering into the written contract, damages for the alleged breach of such oral agreement cannot be...