The Ga. Military Inst. v. Simpson

• Decision Date: 31 August 1860
• Citation: 31 Ga. 273
• Parties: THE GEORGIA MILITARY INSTITUTE. vs. SIMPSON.
• Court: Georgia Supreme Court

31 Ga. 273

THE GEORGIA MILITARY INSTITUTE. vs. SIMPSON.

Supreme Court of the State of Georgia

AUGUST TERM, 1860.

Complaint, in the Superior Court of Cobb county. Tried before Judge Rice, at the March Term, 1860.

On the 22d day of May, 1858, Leonard A. Simpson contracted and agreed with the Board of Visitors of the Georgia Military Institute, to construct and finish a building on the premises of said Institute, for the sum of forty-two hundred and fifty dollars. The building was to be constructed and finished by a specified time, and in accordance with certain prescribed specifications. The second and last items in the specifications are as follows, to wit:

"Bed of foundation, every part of it, to be two feet below the surface of the ground. The foundation to be three bricks thick, to be laid with hard burnt bricks, in hydraulic mortar, and each course well grouted as high as one foot above the surface of the ground, or to the bottom of the joists of the first floor.

"The contractor to do such extra work as he may be called upon to do, and to receive pay therefor at the current price of such work in the town of Marietta."

The said Simpson employed Wallace and Eaves to do the brickwork of said building, and there were used in the building, about thirty thousand more bricks than the estimate which Wallace made. Simpson bid for, and took the contract, with a knowledge of the ground on which the building was to be located, and Wallace made his estimate of the number of bricks which would be required in the building, with the specifications before him.

The ground or site of the building being an inclined plane, said Simpson, instead of making off-sets, which he might have done, dug down the higher part of the ground and laid the foundation deeper so as to make it level with the lower portion of the ground; and in doing this, and building stepsto the building, the extra bricks and work were used and done. Wallace and Eaves were of opinion that the extra work was necessary to make the building a complete and a good job. The Board of Visitors requested Col. Brumby and Captain McConnell to superintend the construction of the work, so far as to see that the contract was carried out, and the work done well. Colonel Brumby did not call upon said Simpson to do any of the extra work sued for, except the steps, and a blackboard. Nor does it appear from the evidence that Captain McConnell, or any one else, ever gave directions for said work to be done, although McConnell was frequently standing about and superintending, or looking at the work whilst it was progressing. Simpson received forty-two hundred and fifty dollars for said building, from the Board of Visitors, and the building was received by the Board of Visitors. Simpson gave a bond, payable to His Excellency, Joseph E. Brown, Governor of the State of Georgia, for the faithful performance of the contract.

Under this state of facts Simpson brought suit against the Georgia Military Institute, to recover three hundred and forty-eight dollars and forty-one cents, for 33, 232 bricks, laid in hydraulic mortar; 1, 667 bricks in the steps; setting stone steps; steps and hand-railing to lower door; scuttle-hole in the roof; and a blackboard for the upper room.

When the testimony (which consisted of the facts herein before detailed) had closed, counsel for the defendant moved a nonsuit against the plaintiff, on the following grounds, to wit:

1. Because the defendant was not liable to be sued in said action.

2. Because the proofs submitted by the plaintiff showed no contract entered into by the defendant, for the work sued for in said case, nor any liability on the part of the defendant to pay for the same; the contract proven having been made by, and with the Board of Visitors, who had no power to bind said Institute.

This motion was overruled by the Court, and counsel for the defendant excepted.

Counsel for the defendant then requested the presiding judge to charge the jury, "That if the plaintiff undertook and contracted to do a certain job of work, in a particular manner, and in accordance with certain specifications, andfor a particular sum of money, and it required more material than the plaintiff anticipated, to do the work in conformity with the contract and specifications, then the plaintiff is not entitled to recover for such excess of work or material."

This charge was given by the Court; but, in addition thereto, the Court charged the jury as follows: "The plaintiff insists that the work for which he claims pay in this action, was extra work; that is, that it was work done in the construction of a building, outside of, or beyond his contract. If the jury believe, from the evidence, that the plaintiff contracted to construct the building according to certain specifications furnished him, and that the plaintiff did do work in the foundation of the building, beyond what was mentioned in the specifications, and that the work so done was necessary to make the building a good and complete building, and that without such additional work in the foundation the building would not have been a good, secure, and complete building, then the work so done is to be regarded as extra work, and for that work, and for the material furnished in doing it, the plaintiff is entitled to recover what the same is proven to have been reasonably worth."

To this additional charge counsel for the defendant excepted.

The jury returned a verdict in favor of the plaintiff for three hundred and forty-eight dollars and forty-one cents, and defendant excepted.

The errors complained of in this case are:

1....