Roberts v. Glass

• Decision Date: 19 December 1900
• Citation: 37 S.E. 704,112 Ga. 456
• Parties: ROBERTS v. GLASS.
• Court: Georgia Supreme Court

37 S.E. 704

112 Ga. 456

ROBERTS v. GLASS.

Supreme Court of Georgia

December 19, 1900

Syllabus by the Court.

The petition as amended set forth a cause of action, and should not have been dismissed upon the demurrers filed thereto.

Error from superior court, Camden county; Jos. W. Bennet, Judge.

Action by N. R. Roberts against J. Z. Glass. Judgment for defendant and plaintiff brings error. Reversed.

E. J Stafford and Simon W. Hitch, for plaintiff in error.

Osborne & Lawrence, for defendant in error.

COBB J.

Roberts brought suit against Glass, alleging that Glass was indebted to him in the sum of $250, less $80.45, for the reason that the defendant had violated the terms of a contract which they had made with each other, the substance of which was as follows: The defendant was "to build fence, clear land remove trees, break ground, in a good, substantial, and workmanlike manner, in conformity with the plans and wishes" of the defendant; the details of the work to be as follows: The timber to be cut and removed or burned; all brush and palmetto to be removed from the land; the land to be double-scootered and inclosed with a good, substantial rail fence, each rail not to be less than four inches in diameter, and of full length; the fence to be ten rails high, staked and ridered,--the land to be cleared and fenced consisting of 25 acres. For such service the defendant was to pay the plaintiff $10 per acre,--50 per cent. on each 5-acre tract so cleared when the same was completed; such sum to be paid to the plaintiff to aid him in carrying on the work; the sums being advanced when each 5-acre tract was completed; the remainder to be paid in full upon the completion of the work. The work was to be commenced at once, and proceed to completion as rapidly as possible. The contract was dated October 12, 1896. It was alleged that the plaintiff at once entered upon the work, and prosecuted the same with as much speed as possible until December 22, 1896, when the defendant requested him to quit work, and he was discharged and prevented from carrying on further work. There is set forth in the petition an itemized statement showing that the value of the work done up to the date last referred to was $170. It is further alleged that the conduct of the defendant was fraudulent, and that the plaintiff was prevented from continuing the work for the express purpose of defrauding and wronging him out of his just dues, and also that the defendant had paid the plaintiff $80.45. In an amendment it was set up that the amount due was $89.55, being the difference between $170 and $80.45. The plaintiff avers that he was ready to perform in accordance with the contract, and had always been ready so to do, and his failure to perform was due entirely to the conduct of the defendant, who not only refused to allow him to continue the work, but had the same done by other persons. To the petition as amended the defendant filed demurrers, both general and special. The court sustained the demurrers and dismissed the action, and to this exception was taken.

The petition set forth a cause of action as against a general demurrer. It was alleged that the parties had entered into a contract under the terms of which the plaintiff was to do certain work, and for that was to...