Starling v. Housing Authority of City of Atlanta, 63325
| Decision Date | 07 July 1982 |
| Docket Number | No. 63325,63325 |
| Citation | 162 Ga.App. 852,293 S.E.2d 392 |
| Parties | STARLING d/b/a Starling, Inc. v. The HOUSING AUTHORITY OF the CITY OF ATLANTA. |
| Court | Georgia Court of Appeals |
John H. Ridley, Atlanta, for appellant.
Lenwood A. Jackson, Atlanta, for appellee.
Appellant contracted to perform renovation work on some twenty houses owned by appellee. Under the terms of the express contract, appellant was to receive payment "in one lump sum upon the satisfactory completion of the work." "Satisfactory completion" was itself conditioned upon appellant's securing the certification of appellee's inspector and the approval of both appellee and the U. S. Department of Housing and Urban Development. Appellant was unable to complete thirteen of the houses within the original time limitations set forth in the contract. Nor was appellant able to tender the "satisfactory completion" of the thirteen houses within any extensions of time which he had been granted under the provisions of the contract authorizing such extensions. Under the express terms of the contract, appellee was authorized to terminate appellant's right to proceed with the work in the event that he had failed to complete it within the original time agreed upon or any extensions thereof. Pursuant to this provision of the contract, appellee exercised its option to terminate appellant's right to proceed with the work, thereby making it impossible for appellant to fulfill the "satisfactory completion" condition precedent to a recovery under the contract.
Appellant instituted the instant action against appellee, ostensibly to recover for breach of contract and to recover for such labor and materials as had been expended in connection with the uncompleted houses. The case came on for trial and, at the close of all the evidence, appellee's motion for directed verdict was granted. Appellant appeals.
1. "A stipulation in a building contract to the effect that the compensation of the builder shall be due and payable only on the certificate of a named engineer is a condition precedent, and an allegation of compliance with this condition is essential to the maintenance of an action brought to recover the unpaid balance of the compensation provided for in the contract..." Southern Mfg. Co. v. R. L. Moss Mfg. Co., 13 Ga.App. 847(2), 81 S.E. 263 (1909). However, Gellis v. B. L. I. Const. Co., 148 Ga.App. 527, 535(1), 251 S.E.2d 800 (1978).
Applying the aforesaid legal principles to the undisputed evidence in the instant case, we find that appellant's nonperformance of the contract, including the satisfaction of the condition precedent to a recovery of the contract price, was "prevented" by appellee's termination of appellant's right to proceed with the project. However, the evidence further establishes that this action on the part of appellee was itself ultimately "caused" by appellant's failure to have the houses completed within the time agreed upon. While the contract provided that appellant's right to proceed would not be terminated because of delay occasioned by unforeseeable causes beyond his control, including "acts of [appellee]," and that, in such an event, an extension of time for completing the work would be granted if applied for in writing, the evidence establishes that appellant was, at the time his further performance was terminated, not working under such an extension and, indeed, had not applied for one. Thus, at the time that appellant's further performance under the contract was terminated, he was in breach of the contract. He was not working within the time period established by the original contract, any valid extension thereof or pursuant to any application for an extension thereof and under the evidence and the contract, appellant was "chargeable with the consequences of such delays." Florida Nor. R. Co. v. Southern Sup. Co., 112 Ga. 1, 5, 37 S.E. 130 (1900). Appellee's right to terminate appellant's further untimely performance in these circumstances is indisputable under the express terms of the contract. See generally Equitable Loan & Security Co. v. Waring, 117 Ga. 599(8), 44 S.E. 320 (1903). Appellant's nonperformance of the contract was therefore not...
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Wilson v. Cunningham
...to recover for their services, irrespective of the validity of the written contract itself. Accord Starling, Inc. v. Housing Auth. of Atlanta, 162 Ga.App. 852(2), 293 S.E.2d 392 (1982). "A motion to dismiss for failure to state a claim is not to be granted unless under the pleadings, constr......
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Starling, Inc. v. Housing Authority of Atlanta
...theory of recovery, but reversed on the basis that the appellant could still recover in quantum meruit. Starling, Inc. v. Housing Auth. of Atlanta, 162 Ga.App. 852, 293 S.E.2d 392 (1982). Following the second trial, a jury returned a verdict of $27,000 for the appellant. The trial court, ho......