Sasser & Co. v. Griffin, s. 49659
| Citation | 210 S.E.2d 34,133 Ga.App. 83 |
| Decision Date | 21 October 1974 |
| Docket Number | Nos. 49659,No. 2,49660,s. 49659,2 |
| Parties | SASSER & COMPANY v. Joseph F. GRIFFIN, Jr., et al. SANFORD CONSTRUCTION COMPANY et al. v. SASSER & COMPANY et al |
| Court | United States Court of Appeals (Georgia) |
Stokes, Boyd & Shapiro, Larry S. McReynolds, Atlanta, for sasser & co.
Malberry Smith, Jr., Savannah, for Griffin.
Smith & Portman, Spencer Lawton, Jr., Barnard M. Portman, Savannah, for Sanford.
Syllabus Opinion by the Court
Plaintiff, a subcontractor, brought this action against Sanford and Space, the prime contractor, seeking payment under the subcontract, and against the owners of property on which Sanford and Space constructed a high-rise apartment building, seeking the establishment of a lien thereon. From a denial of plaintiff's motion for summary judgment, plaintiff appeals on a certificate of review (Case #49659). By cross appeal Sanford and Space assert errors as to the trial court's disposition of various other motions made during the proceedings below (Case #49660).
Plaintiff contends it is entitled to a summary judgment or at least a partial summary judgment in the amounts of $29,749.59 (for one contract) and $1,500.00 (for a second contract). The pleadings, affidavits and interrogatories show that the owners of certain property in Savannah, Georgia contracted with Sanford and Space for the construction of a high-rise apartment building. Sanford and Space in turn entered into two subcontracts with plaintiff to install the plumbing and heating systems and the air conditioning units for the building. The entire project was to be completed by April 1, 1971, according to the prime contract to which plaintiff bound itself. Plaintiff did not complete performance until July, 1971 and there is evidence that plaintiff performed additional work on the project in August, 1971.
Both subcontracts provided that plaintiff was to be paid by Sanford and Space 'as the work progresses, based on estimates and certificates of the Architects or Contractor and payments will be made from money received from the owner only and divided Pro Rata amount (sic) all approved accounts of subcontractors labor and material.' (Emphasis supplied.) This provision was amended in the plumbing and heating contract in that the italicized words were stricken and there was substituted The air conditioning subcontract was not so amended but does contain this added provision: 'Payment within 10 days of receiving money from owner-approximately 20th of the month.'
In July, 1971, the designing architect certified that the project was substantially complete and directed the owners to pay to Sanford and Space all retainage under the contract on work completed by that time. The owners claim they have paid Sanford and Space all monies due them under the contract, though they deny approval of the project. (The owners and Sanford and Space are presently involved in litigation in Chatham Superior Court). In August, 1971, the owner's lessee Housing Authority began occupying the building. On October 29, 1971, the plaintiff filed for record a materialman's claim of lien for $29,516.06 on the plumbing and heating subcontract and $1,500 on the air conditioning subcontract. Held:
1. Under Ga.L.1967, p. 456 (Code Ann. § 67-2002, subd. 2), the recording of a materialman's lien must be within three months after the last material is furnished to the construction project. Even though the project was certified as being substantially complete on July 29, the plaintiff has submitted affidavits and invoices showing equipment and labor were furnished to the project on July 30, August 2 and August 4, all within three months of filing on October 29. None of the three owners has submitted any evidence in rebuttal, but rest on the denials of timely filing in their answers. 'When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this section must set forth specific facts showing that there is a genuine issue for trial.' Civil Practice Act § 56e (Code Ann. § 81A-156). There being no gunine issue of fact as to plaintiff's establishment of a materialman's lien in the amounts alleged, it was error not to grant plaintiff's motion for summary judgment for that purpose against defendants Joseph Griffin, Jr., and Chatham-Savannah. As to lessee, Housing Authority, as an original proposition, Ga.L.1937, pp. 210, 229; 1939, p. 124 (Code Ann. § 99-1130) may exempt it from a 'lien upon its real property,' but in leasing the property it took subject to any lien rights of which it may have had actual notice. Oglethorpe Savings & Trust Co. v. Morgan, 149 Ga. 787(1), 102 S.E. 528. An estate for years may be subjected to the lien. James G. Wilson Mfg. Co. v. Chamberlin-Johnson-Dubose Co., 140 Ga. 593, 79 S.E. 465. Here a factual issue remains.
None of the owners has a contractual liability, jointly or otherwise, to plaintiff since they were not parties to the subcontracts between plaintiff and Sanford and Space, but this does not prevent the establishment of a lien by a subcontractor under Code Ann. § 67-2001(2). See Stein Steel & Supply Co. v. Goode Const. Co., 83 Ga.App. 821, 65 S.E.2d 183.
2. Sanford and Space and their surety, defendant Travelers Indemnity Company, have defended against plaintiff's action on the contract on two grounds: (a) payment by owners to Sanford and Space was a condition precedent to latter's liability to plaintiff under the terms of both subcontracts, and owners had not paid all sums due under the prime contract; and, (b) plaintiff had breached the subcontract by not completing performance by the time required in the prime contract.
The owners and Sanford & Space cross claimed against each other in the event either should be found liable to plaintiff. Other defenses and motions proffered by Sanford and Space will be treated below in Division 3 dealing with its cross appeal.
( a) The language in the amendment of the plumbing and heating subcontract clearly shows that the parties intended for plaintiff to be paid independently of payments received from the owners by Sanford and Space. While the owners deny approval of the entire project, they do not dispute that plaintiff has completed his performance under the subcontract. That contract is to be enforced as written. 'It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties.' Carr v. L. & N.R. Co., 141 Ga. 219, 222, 80 S.E. 716, 717; Gray v. Akin, 205 Ga. 649, 652, 54 S.E.2d 587. We are not at liberty to revise a contract while professing to construe it. Reynolds v. Tufts, 123 Ga.App. 147, 149, 179 S.E.2d 652.
There is, however, no such amendment to the air conditioning subcontract, and it provides 'payments will be made from money received from the owner only' and 'payment within 10 days of receiving money from owner-approximately 20th of the month.'
A provision in a contract may make payment by the owner a condition precedent to a subcontractor's right to payment if 'the contract between the general contractor and the subcontractor should contain an express condition clearly showing that to be the intention of the parties.' Thomas J. Dyer & Co. v. Bishop International Engineering Co., 6 Cir., 303 F.2d 655, 661. The condition is clearly expressed in this subcontract. See dictum in Peacock Const. Co. v. West, 111 Ga.App. 604, 142 S.E.2d 332. Code § 20-702.
( b) Sanford and Space cannot successfully defend their nonpayment of plaintiff on the ground that plaintiff breached the contract by not completing his work in time. Late performance may constitute a breach of contract by the plaintiff, but the remedy for the breach is not nonpayment; it is recoupment (formerly under Code §§ 20-1311 and 20-1314) or what is now a counterclaim under CPA § 13 (Code Ann. § 81A-113). 'And, while it is true that, on the acceptance of the work by the owner after the building contractor has rendered the entire service for which he has contracted, the contractor is authorized to proceed to collect the balance due him by the terms of the contract, any damage to the owner resulting through the negligent performance of the contract by the contractor is a matter for recoupment.' Allied Enterprises, Inc. v. Brooks, 93 Ga.App. 832(1), 93 S.E.2d 392. This same rule applies to actions ex contractu, between contractor and subcontractor, see, e.g., Bettis v. Comfort Control, Inc., 115 Ga.App. 104, 153 S.E.2d 678, and for damages alleged to have been caused by delay in completion of construction. See, e.g., Blount v. Kicklighter, 125 Ga.App. 159(1), 186 S.E.2d 543. Sanford and Space did attempt to file a counterclaim against plaintiff but it was disallowed as not being timely filed (see Headnote 3(c) below).
The liability of defendant Travelers, who is jointly and severally liable with Sanford and Space under the payment and performance bond, and who pled in the same manner and substance as Sanford and Space, is the same.
Therefore plaintiff's motion for summary judgment should have been granted against Griffin and Chatham-Savannah as to the establishment of the lien, in the amount claimed, and against Sanford and Space as to payment due under the plumbing and heating subcontract. However, the cross...
To continue reading
Request your trial
-
Williams v. Trust Co. of Georgia, 52695
...CPA § 56(e) (Code Ann. § 81A-156(e)); Stephens County v. Gaines, 128 Ga.App. 661, 197 S.E.2d 424 (1973); Sasser & Co. v. Griffin, 133 Ga.App. 83, 85, 210 S.E.2d 34 (1974). Moreover, Williams admitted 'that he does not know and therefore cannot contend why or how this statement was made.' 'T......
-
U3S Corp. of America v. Parker
...it is the duty of the courts to construe and enforce contracts as made, and not to make them for the parties (Sasser & Co. v. Griffin, 133 Ga.App. 83, 86(2a), 210 S.E.2d 34). The majority justifies its departure from these sound rules by asserting that to construe the agreement, according t......
-
Powell Company v. McGarey Group, LLC
...provision that makes payment by the owner a condition precedent to a subcontractor's right to payment. In Sasser & Co. v. Griffin, 133 Ga.App. 83, 86, 210 S.E.2d 34 (1974), the court held that a provision in a subcontract stating that the contractor shall pay the subcontractor "from the own......
-
Southern States Masonry, Inc. v. J.A. Jones Const. Co.
...conclusion. See, e.g., Star Contracting Corp. v. Manway Construction Co., 32 Conn.Supp. 64, 337 A.2d 669 (1973); Sasser and Co. v. Griffin, 133 Ga.App. 83, 210 S.E.2d 34 (1974); A.A. Conte, Inc. v. Campbell-Lowrie-Lautermilch Corp., 132 Ill.App.3d 325, 87 Ill.Dec. 429, 477 N.E.2d 30 (1985) ......
-
Construction Law - Brian J. Morrissey
...Id. at 820-21, 452 s.e.2d at 787. 107. Id. at 821, 425 S.E.2d at 787. 108. Id. at 819, 452 S.E.2d at 786. See Sasser & Co. v. Griffin, 133 Ga. App. 83, 210 S.E.2d 34 (1974). 109. 214 Ga. App. 243, 447 S.E.2d 687 (1994). 110. Id. at 243, 447 S.E.2d at 684. 111. Id. 112. Id. at 243-44,447 S.E......
-
The Enforceability of Paid When Paid Clauses in Construction Contracts
...v. Self, 676 S.W.2d 624, 627 (Tex. App. 1984). 38. 229 S.E.2d 260 (S.C. 1976). 39. Id. at 262. 40. 184 N.E. 473 (N.Y. Ct. App. 1933). 41. 210 S.E.2d 34 (Ga. App. 42. Id. at 39 (quoting Dyer). 43. Id. at 37. (Emphasis supplied.) 44. Id. at 39. 45. 477 N.E.2d 30 (111. App. 1985). 46. Id. at 3......