Pro Metal Bldg. Systems, Inc. v. T.E. Driskell Grading Co., Inc., 67282

• Decision Date: 06 March 1984
• Docket Number: No. 67282,67282
• Citation: 316 S.E.2d 574,170 Ga.App. 127
• Court: Georgia Court of Appeals
• Parties: PRO METAL BUILDING SYSTEMS, INC. v. T.E. DRISKELL GRADING COMPANY, INC.

Page 574

316 S.E.2d 574

170 Ga.App. 127

PRO METAL BUILDING SYSTEMS, INC. v. T.E. DRISKELL GRADING COMPANY, INC.

No. 67282.

Court of Appeals of Georgia.

March 6, 1984.

James C. Gaulden, Jr., Dana F. Persells, Atlanta, for appellant.

Thomas J. Casurella, Thomas J. Browning, Marietta, for appellee.

CARLEY, Judge.

Appellee-plaintiff subcontractor brought suit against appellant-defendant general contractor to recover for certain "extra work" that it asserted had not been contemplated under the parties' written agreement. The case was submitted to a jury and a verdict was returned for appellee. Appellant's motion for judgment n.o.v. or new trial was denied and it appeals.

1. In several related enumerations of error appellant raises the general grounds. Appellant first asserts that appellee was already required to perform the "extra work" pursuant to the clear and unambiguous terms of the written contract and therefore cannot recover additional compensation for its performance. The final written contract between the parties provided, in relevant part, that appellee would "[s]upply all labor, material and equipment to do a complete grading job per [appellee's] quote and the drawings dated 8/3/81 and specifications by John M. Ware, A.I.A. ..." Appellant takes the position that the "drawings" and "specifications," to which specific reference was made, had the effect of defining appellee's obligation under the written contract "to do a complete grading job" and that the obligation as thus defined included the work now asserted to be "extra." Although the contract did refer to "drawings" and "specifications," the writing also clearly indicated that appellee's undertaking was to be "per [its] quote." The "quote" referred to was appellee's proposal for "clearing, grading, placing fill in dock area only." (Emphasis supplied.) Appellee thus contends that its only obligation under the written contract was to perform pursuant to its "quote" and that the compensation it seeks is for additional work performed other than in the "dock area."

It is unclear whether the "drawings" and "specifications" referred to in the contract were themselves broadly intended to demonstrate that appellee's obligation under the contract included the entire project depicted therein or whether, in a more narrow sense, they were intended solely to orient appellee's performance of certain work in the "dock area only" within the much broader framework of the entire project. We find, as did the trial court, that this ambiguity concerning the extent of appellee's obligation under the contract remains, even after all the rule of construction have been employed. See generally Salvatori Corp. v. Rubin, 159 Ga.App. 369, 283 S.E.2d 326 (1981). Accordingly, the contract is not clear and unambiguous and the trial court did not err in submitting the question of the parties' intent thereunder to the jury.

Appellant also contends that a provision of the written contract requiring written authorization for extra work is an impediment to appellee's recovery, there being no such written authorization for the "extra work" at issue. Our review of the evidence demonstrates that a recovery by appellee was authorized even though the "extra work" was not done pursuant to a written authorization from appellant. The evidence of record demonstrates that the instant case comes within the following legal principle: " 'Where the owner, without claiming that the work is covered by the contract, orally orders extra work, as such, with notice that the contractor regards the work as extra and expects additional compensation therefor, the contractor can recover for the work notwithstanding a stipulation of the contract requiring a written order therefor.' [Cits.]" State Hwy. Dept. v. Wright Contracting Co., 107 Ga.App. 758, 764, 131 S.E.2d 808 (1963). See also Biltmore Constr. Co. v. Tri-State Elec. Contractors, 137 Ga.App. 504, 506 (1), 224 S.E.2d 487 (1976).

At least some portion of the work for which appellee sought a recovery was work which was covered under the original written contract, but which appellee had to perform twice. A...