Southern Land, Timber & Pulp Corp. v. Davis & Floyd Engineers, Inc.
| Decision Date | 09 January 1964 |
| Docket Number | 3,Nos. 1,2,No. 40335,40335,s. 1 |
| Citation | 135 S.E.2d 454,109 Ga.App. 191 |
| Parties | SOUTHERN LAND, TIMBER & PULP CORP. v. DAVIS & FLOYD ENGINEERS, INC |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The contract for professional engineering services which is the basis of the cause of action is not too vague and indefinite to be enforceable.
2. Damages for breach of contract are not too speculative and impossible of ascertainment where the contract, while providing no specific total price, does provide specific rates of payment for the services of various engineering personnel and the scope of the contract is set out.
3. The special demurrers were properly overruled.
This is a breach of contract action brought by Davis & Floyd Engineers, professional engineers, against Southern Land, Timber & Pulp Corporation. The contracts alleged concern certain engineering services to be rendered in the planning and construction of a six hundred ton per day liner board paper mill and a fourteen mile railway near Cedar Springs in Early County, Georgia.
Before the contracts were entered into the plaintiff had been employed by defendant to assist in the selection and development of a site for the construction of the paper mill. The site was selected and a plot plan drawn. The site is shown and the plot plan set out in exhibits attached to the petition. The route of the railway was to be located and developed to connect the paper mill with two trunk line railroads. An exhibit setting out this route was attached. Certain materials to be used in developing the site and constructing the plant were to be tested.
There are two contracts in the amended petition and a summary of the allegations follows. The first (Count 1) concerned professional engineering services to be rendered by plaintiff in the planning and development of the plant site and railroad. The pertinent provisions are:
'(a) To prepare detailed plans and specifications for the site preparation construction at said paper mill plant site adapted to the location layout proposed by defendant as aforesaid, including plane and topographical survey of the property, location and design of access roads and water disposal lagoons, and planning of site grading.
'(b) To survey, locate the course of, and design the said fourteen mile railroad upon the route selected by defendant as aforesaid, and to prepare detailed plans and specifications for the construction of said railroad.
'(c) To consult with defendant in connection with advertising for bids for the construction of said plant site and railroad, and in the letting of contracts for such construction.
'(d) To supervise the construction of said plant site and railroad pursuant to the plans and specifications prepared by petitioner.
'(e) To furnish and perform all professional engineering services relating to the above, including field engineering and surveying; design and layout work; and consultation with defendant, other engineers, and other employees and contractors of defendant.'
Payment was provided for at the following rates: Engineer--$6.25 per hour; Draftsman--$4.25 per hour; three man engineering survey party--$94 per day plus $11.75 per hour for hours in excess of 40 hours per week.
The contract was entered into on September 15, 1960, and the plaintiff entered upon its performance. Defendant 'in bad faith and without cause' ordered plaintiff off the job on April 9, 1961. At that time, plaintiff had completed all preliminary work, had prepared plans and specifications for construction of the plant site and railroad and had assisted defendant in advertising for and receiving bids on and the letting of a $500,000 contract for construction of the plant site. All of these services had been performed in a workmanlike manner and had been accepted by the defendant. Since plaintiff's discharge, defendant has let an additional $750,000 contract for the railroad construction and the construction of both the railroad and the plant site has proceeded pursuant to plans and specifications furnished by plaintiff.
Plaintiff engineers have been paid for services actually rendered under the contract, pursuant to monthly billings. Performance of further services under the contract set out above has been prevented despite plaintiff's readiness, willingness and ability to complete performance.
Damages are sought in the amount of the difference between the total compensation plaintiff would have received for completing the performance less the cost to plaintiff of doing so. The specific quantity of engineering services necessary to complete performance is alleged along with their contractual value and the cost of furnishing the services is set out.
The second contract (Count 2) dealt with the services of the plaintiffs as professional engineers 'in making soil and concrete tests, for the purpose of determining the characteristics of the soil at said plant site and the concrete used in the construction.' The pertinent provision is:
'4(a) Petitioner agreed to furnish all professional engineering services, and all testing equipment and laboratory supplies necessary for determining strength, slump and air content of concrete used in said construction and for determining maximum densities, optimum moisture and field density of soil at said plant site, during the construction of said paper mill site and plant, and in connection therewith to furnish transportation, casual labor, heat, electricity and other incidentals except housing for the testing laboratory.'
Pay was to be $6.25 an hour for each engineer and $600 per month for furnishing the testing equipment, supplies, labor and other incidentals.
The parties agreed upon the terms of this contract March 25, 1961, and plaintiff's performance was to begin immediately. At the time of the alleged discharge in bad faith on April 9, 1961, plaintiff had obtained the necessary equipment for making the tests described and brought it to the job site. Since then, the contract for construction of the paper mill has been let and the mill is substantially completed.
The damages sought are set out in much the same manner as described above with reference to the first contract.
General and special demurrers to the amended petition were overruled and the defendant excepts.
Hugh M. Dorsey, Jr., Hansell, Post, Brandon & Dorsey, Jule W. Felton, Jr., Dent Acree, Atlanta, for plaintiff in error.
Gambrell & Mobley, David H. Gambrell, Atlanta, Mays & Mays, Marshall T. Mays, Greenwood, S. C., for defendant in error.
1. Can the contract, as alleged here, Withstand a demurrer attacking it on the basis of vagueness and indefiniteness? The defendant insists that uncertainty exists in four specifics, viz.: time for performance; when plaintiff's employees were to work; who would furnish the tools; and, the time for payment. On the other hand, plaintiff contends that the contract, being one for the professional employment of engineers, would of necessity be somewhat indefinite and that these contracts cannot be drawn with the exactness of ordinary trade agreements.
There is a dearth of cases dealing with engineers and their professional contracts but we think an excellent analogy can be found in the more abundant architect's cases. Georgia courts have generally grouped the two 1 and usually architects have some engineering training and often perform engineering services.
An architect's contract case that directly supports plaintiff's theory is Folsom v. Summer, Locatell & Co., 90 Ga.App. 696, 83 S.E.2d 855. There the original record shows that the court was dealing with a standard American Institute of Architect's Contract containing the following operative provision:
Plaintiff, having completed its services, declared on the contract seeking recovery of the fees as specified in it. In dealing with a vagueness and indefiniteness attack similar to that made here, Chief Judge Felton said: Folsom v. Summer etc. Co., supra, 90 Ga.App. p. 698, 83 S.E.2d p. 856.
We view this direct holding as controlling. Certainly the contract here is no less definite than that involved in Folsom. Further support may be found in Curtis v. Burney, 55 Ga.App. 552(1), 190 S.E. 866. There plaintiff was employed to draw plans and specifications and supervise construction of a house at $30 per week. After the plans were drawn and construction begun, defendant dispensed with plaintiff's services and completed the house under another's supervision. Plaintiff was allowed recovery of $30 a week for the nine weeks it actually took to complete the house after his discharge.
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