Morrow Transfer & Storage Co. v. Wells Bros. Co. of New York

• Decision Date: 04 March 1921
• Docket Number: 11253,11254.
• Parties: MORROW TRANSFER & STORAGE CO. v. WELLS BROS. CO. OF NEW YORK. WELLS BROS. CO. OF NEW YORK v. MORROW TRANSFER & STORAGE CO.
• Court: Georgia Court of Appeals

106 S.E. 200

26 Ga.App. 366

MORROW TRANSFER & STORAGE CO. v. WELLS BROS. CO. OF NEW YORK.

WELLS BROS. CO. OF NEW YORK v. MORROW TRANSFER & STORAGE CO.

Nos. 11253, 11254.

Court of Appeals of Georgia, Second Division

March 4, 1921

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by the Morrow Transfer & Storage Company against the Wells Bros. Company of New York. Judgment for defendant, and plaintiff brings error, and defendant files a cross-bill of exceptions. Judgment affirmed, and cross-bill of exceptions dismissed.

King & Spalding and Spalding, MacDougald & Sibley, all of Atlanta for plaintiff in error.

Rosser Slaton, Phillips & Hopkins and Smith, Hammond & Smith, all of Atlanta, for defendant in error.

STEPHENS J.

1. A builder's contract providing for the erection of a building, which is to be of such size and dimension as to require its foundation to be constructed with special reference to the character of the ground upon which it is to rest, contemplates not only the erection of a properly constructed building under the terms of the contract, but also contemplates the construction of a suitable and safe foundation for the building to rest upon.

2. In such a contract, which provides for the erection of the building according to certain plans and specifications which call for a certain character of foundation, where there is a provision that "the owner may make such alterations changes, or additions to the work as may be required, without invalidating the terms of the contract," and that the builder may "at any time during the progress of this work make any additions to, or alterations or deviations from, the drawings or specifications without invalidating this agreement," an alteration afterwards made in the contract, plans, or specifications providing for a different kind of foundation and a different treatment of the ground upon which the building is to rest, which is found after the work has progressed to be necessary in order to support the structure and render it safe, is not a violation of the contract, but is only such an alteration or deviation as is contemplated in the contract providing for a properly constructed building on a good and appropriate foundation. This is true even though at the time of the execution of the contract there was nothing in the nature of the work contemplated or in the character of the ground upon which the building was to be located which would then indicate that such an alteration in, or deviation from, the foundation plans might become necessary for the purpose of carrying out the builder's contractual obligation to erect a properly and safely constructed building. More especially is this true when the contract provides that test borings and samples of the soil had been made and were subject to the inspection of bidders, but that the soil conditions were not guaranteed.

3. A contract entered into by the builder with a third person, by the terms of which the third person obligated himself to do and perform for the builder certain work devolving upon the builder under his contract with the owner, such as excavating for the foundation of the building and shoring and protecting the adjoining walls and assuming responsibility for their safety, which provided that the subcontractor would perform his obligations under the contract "in conformity with the plans, drawings, and specifications, including all revisions to date made by [the architect], which said plans, drawings, and specifications are signed by the parties hereto and are hereby made a part of this agreement according to the true intent and meaning thereof," obligated the subcontractor to perform his obligations under the subcontract under any altered or changed conditions resulting from any alteration in or deviation from the plans or specifications contained in the builder's contract with the owner and permitted under the provisions of that contract.

4. Where, after the execution of the builder's contract with the owner, it was found that the character of the ground rendered it necessary, in order to obtain a building properly and safely constructed as...