Shaheen v. Kiker
| Decision Date | 03 April 1962 |
| Docket Number | Nos. 39389,No. 3,39390,s. 39389,3 |
| Citation | 105 Ga.App. 692,125 S.E.2d 541 |
| Parties | S. SHAHEEN et al. v. T. L. KIKER. T. L. KIKER v. S. SHAHEEN et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. A suit upon an open account may be predicated on an architect's certificate rendered under a building contract. Such a suit is not subject to general demurrer nor is it subject to a special demurrer seeking to have the plaintiff attach a copy of the building contract.
2. Pleas in abatement must be filed on or before the appearance day in order to be effective. Code § 81-403, as amended. Thus, a plea filed after the appearance day setting up that there had been no arbitration on the contract was too late.
3. (a) Where a contract governs the due date of an account, interest runs only from that date.
(b) Where there is no prayer for interest there can be no recovery therefor.
(c, d) Any error here in failing to charge as to the due date of the account or as to when interest begins to run thereon is harmless.
4. Where defendant files a plea of recoupment and the jury returns a verdict for the plaintiff in the full amount, any error in the charge on the measure of damages under the plea was harmless.
5. A charge that a defendant filing a plea of recoupment must show with some degree of precision how the alleged damages logically resulted from alleged breaches of his contract by the plaintiff is a correct charge.
6. Proffered testimony which is not in proof of or support of allegations is properly excluded.
T. L. Kiker, a general contractor, brought suit on open account to recover from Mr. and Mrs. Shaheen the balance which he claimed to be due him for the construction of a house. The statement of account, attached to the petition, was in thr form of a certificate from a firm of architects, dated January 6, 1960, approved by the architect January 11, 1960, and listed the original contract cost for the house of $45,700. Payments amounting to $38,437.51 had been made, thus showing a balance unpaid of $7,262.49. In addition, there was a statement of an amount due for additional work in the sum of $2,477.46, making a gross amount owing of $9,739.95. The statement was later amended by reducing the amount due for extra of additional work to $1,095.50 (a gross amount of $8,357.99). The contractor alleged that demand had been made for payment of the account on April 5, 1958, but that no payment had been made.
Defendants demurred generally to the petition, and demurred specially, seeking to have plaintiff attach to his petition a copy of the contract upon which the account was based, and upon the ground that the petition sought to recover interest from April 5, 1958, while the account in the form of an architect's certificate as to the balance due was dated January 6, 1960. The demurrers were overruled.
Defendants answered, denying that they were indebted upon the account, and filed a plea of recoupment upon the ground that plaintiff had breached his contract to build the house in some 42 particulars and that because of such breaches an expenditure of$5,000 would be the reasonable cost of correcting the defects in the house. A copy of the contract between plaintiff and defendants was attached to the plea and answer.
The case proceeded to trial before a jury, and while in the progress of the trial defendants filed what was designated as a 'plea in bar,' setting up that the provisions of the contract between plaintiff and defendants made it a condition precedent to the maintenance of any action thereon that any matters in dispute between the parties be submitted to arbitration. This plea was stricken on motion. The jury returned a verdict in favor of the plaintiff for the sum of $8,357.99, besides interest at seven percent on the contract balance of $7,262.49, and upon the verdict judgment was entered with the interest on the $7,262.49 being calculated from April 5, 1958. A motion for new trial was made, thereafter amended, and it was overruled. The defendants now assign error upon the overruling of the demurrers, the striking of the 'plea in bar,' and the overruling of the motion for new trial, as anended.
Pittman, Kinney & Pope, J. T. Pope, Jr., Dalton, for plaintiffs in error.
Walter H. Bolling, Dalton, for defendants in error.
1. There is no merit in the general demurrer, and it was properly overruled. Nor is there any merit in any of the grounds of special demurrer. That a suit may be maintained upon open account for the items shown in the exhibit attached to the petition and without attaching a copy of the contract in a case of this kind is settled in Ittner Bros. v. Farmers State Bank, 15 Ga.App. 235, 82 S.E. 909. If the allegations of the petition had been such as to place the plaintiff in the position of declaring upon the contract, it would have been proper to require that it be attached as an exhibit or incorporated in substance in the petition. Finn v. Carden, 100 Ga.App. 270, 110 S.E.2d 693. And, in that situation, it would have been necessary to allege compliance with conditions precedent appearing in the contract. However, it does not appear from the allegations here that plaintiff was declaring upon the contract. Although the architect's certificate which was used as the statement of account was dated January 6, 1960, that would not show or indicate that the amount sought to be recovered was not due on some other date. It is a general rule that where the sale is at a fixed price an account for materials or merchandise sold or for labor performed is, in the absence of an agreement between the parties or a custom to the contrary, due immediately upon delivery of the materials or merchandise or the performance of the labor, and interest begins to run from delivery or performance. Rice-Stix Dry Goods Co. v. Friedlander Bros., 30 Ga.App. 312 (3), 117 S.E. 762, aff'd. 158 Ga. 303, 122 S.E. 890; Horkan v. Great American Indem. Co., 211 Ga. 690 (5), 88 S.E.2d 13, and citations. The preparation and dating of a statement of account at some later date either for the purpose of presenting for payment or for the filing of suit on the account would not change the rule or alter the running of interest.
2. Although the contract for the building of the house did provide (Article 19, A.I.A. Standard Short Form Contract No. 307) that the submission to arbitration of any dispute between the parties should be a condition precedent to the maintenance of a suit, the plea setting up this condition came too late. Though designated as a 'plea in bar' it was no more than a plea in abatement. It did not go to the merits, but merely as to when the amount might be due and subject to suit. Shaw v. Southern Ry. Co., 17 Ga.App. 78, 79(3), 86 S.E. 95; Carter v. Solomon, 54 Ga.App. 517(1), 188 S.E. 545. If it had...
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