State Highway Dept. v. Eagle Const. Co.

• Court: Georgia Court of Appeals
• Writing for the Court: PANNELL; BELL; DEEN; DEEN
• Citation: State Highway Dept. v. Eagle Const. Co., 188 S.E.2d 810, 125 Ga.App. 678 (Ga. App. 1972)
• Decision Date: 15 February 1972
• Docket Number: No. 1,No. 46644,46644,1
• Parties: STATE HIGHWAY DEPARTMENT v. EAGLE CONSTRUCTION COMPANY, Inc., et al

Page 810

188 S.E.2d 810

125 Ga.App. 678

STATE HIGHWAY DEPARTMENT v. EAGLE CONSTRUCTION COMPANY, Inc., et al.

No. 46644.

Court of Appeals of Georgia, Division No. 1.

Feb. 15, 1972.

Rehearing Denied March 9, 1972.

Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, William B. Brown, Asst. Attys. Gen., G. Thomas Davis, Deputy Asst. Atty. Gen., Atlanta, for appellant.

Greene, Buckley, DeRieux & Jones, Raymond H. Vizethann, Jr., Atlanta, Telford, Stewart & Stephens, J. Douglas Stewart, Gainesville, for appellees.

Syllabus Opinion by the Court

PANNELL, Judge.

An action was brought in the Civil Court of Fulton County by the State Highway Department of Georgia against Eagle Construction Company, a contractor who had contracted with the U.S. Army Corps of Engineers for the channel improvement of Yellowjacket Creek in Troupe County, Georgia over a portion of which a Highway Department bridge of Route U.S. 29 had been built. The work involved in the present controversy was sublet to A. G. Wimpy Company, Inc., the defendant in a third-party action brought by the contractor, and during the progress of the work the foundations, thought to be on rock as 'indicated' by Highway Department records and as reported to the Corps of Engineers, turned out to be sand and silt. When the dredging took place it weakened the foundations and caused a slight sinking of the bridge. As a result, the Highway Department and the U.S. Corps of Engineers entered into an agreement in which they estimated the cost of repairs, some of which were not occasioned by the dredging, to be approximately $12,000, which would be done by the Highway Department and the U.S. Engineers would absorb $6,000 of the cost. Since the U.S. Corps of Engineers was not authorized to pay this amount of the cost directly to the Highway Department, a change order was entered into with the contractor, which provided for the doing of certain work repairing the bridge at an extra cost of $6,170.79. There was evidence that the Highway Department performed all of the work required under this change order and the evidence was uncontradicted that it performed most of it. The testimony relating to the agreement between the Highway Department and the U.S. Corps of Engineers, and that the contractor had orally agreed to reimburse the Highway Department $6,000 and certain writings tending to substantiate the parol evidence in part was not allowed in evidence because of objections that to do so would permit parol evidence to vary and contradict the terms of the change order. At the conclusion of the evidence the trial judge directed a verdict for defendant. The Highway Department appealed to this court. Held:

1. The contract here was not one in conflict with the written change order but was in effect a subcontract to the change order, whereby the Highway Department which did a part of the work called for by the change order was to be paid for such work.

2. Nor was the parol agreement to pay the Highway Department for the work done one covered by the Statute of Frauds, and unenforceable, as contended by the contractor-defendant. 'To make the following obligations binding on the promisor, the promise must be in writing, signed by the party to be charged therewith, or some person by him lawfully authorized, viz: . . . 2. A promise to answer for the debt, default, or miscarriage of another.' Code § 20-401. The promise required by this section to be in writing does not include an original undertaking whereby a new promisor, for valuable consideration, substitutes himself as party who is to perform, and releases the original promisor. Evans v. Griffin, 1 Ga.App. 327, 328, 57 S.E. 921; Foote v. W. K. Reece & Son, 17 Ga.App. 799(1), 88 S.E. 689; Williams v. Garrison, 21 Ga.App. 44(1), 93 S.E. 510; Auld v. City of Elberton, 27 Ga.App. 723, 110 S.E. 243. The valuable consideration to support the promise was the payment to the contractor for the work done by the Highway Department, which the contract called for the contractor to do. And this rule would apply whether or not the work done by the Highway Department was done before the parol agreement was made or subsequently thereto.

3. It follows that the trial court erred in refusing to admit the evidence objected to, which, if admitted, would have been sufficient to have authorized in finding in favor of the plaintiff. Therefore, the direction of the verdict in favor of the defendant and the entry of a judgment thereon was also error. Fountain v. Hagan Gas Engine & Mfg. Co., 140 Ga. 70(2), 78 S.E. 423; Dean v. Hilton & Dodge Lumber Co., 6 Ga.App. 480(2, 3), 65 S.E. 300. Whether or not the sustaining of a motion for the direction of a verdict as to the negligence feature of the case in favor of the defendant and the third-party defendant (made concurrently with a motion for a directed verdict for the defendant as to the contract feature of the case, both of which were sustained and a verdict directed) was proper in the absence of the evidence objected to, we do not decide, inasmuch as a new trial results from our reversal of the direction of the verdict and the evidence on the negligence feature of the case may be different upon the next trial. The appellant enumerated error on the direction of a verdict and not upon the sustaining of the separate motions. Further, if defendant and third-party defendant desired to eliminate the negligence feature of the case, a motion for summary judgment, if sustained, would have been the proper way to have done so without having such ruling affected by any ruling on the contract feature of the case upon the direction of a verdict.

4. The trial judge, over the objection of the appellant, added three jurors to the panel, making a panel of fifteen, and permitted the third-party defendant three strikes from the panel.

Section 9 of the Act of 1956 (Ga.L.1956, pp. 3271, 3279) substituted a new section 40 for the Act of 1913 and Acts amendatory thereof, relating...