Venture Const. Co. v. Great Am. Mortg. Investors

• Decision Date: 14 March 1975
• Docket Number: No. 50014,No. 2,50014,2
• Citation: 134 Ga.App. 440,214 S.E.2d 683
• Parties: VENTURE CONSTRUCTION COMPANY v. GREAT AMERICAN MORTGAGE INVESTORS et al
• Court: Georgia Court of Appeals

Page 683

214 S.E.2d 683

134 Ga.App. 440

VENTURE CONSTRUCTION COMPANY v. GREAT AMERICAN MORTGAGE INVESTORS et al.

No. 50014.

Court of Appeals of Georgia, Division No. 2.

March 14, 1975.

Rehearing Denied April 4, 1975.

Cofer, Beauchamp & Hawes, Peyton S. Hawes, Jr., James H. Rollins, Atlanta, for appellant.

Alston, Miller & Gaines, Ronald L. Reid, Atlanta, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

Plaintiff, Venture Construction Company (hereafter called 'Construction Company') appeals from the grant of a motion for partial summary judgment to co-defendant Great American Mortgage Investors ('GAMI'). The motion was addressed solely to paragraph 12.

In its complaint Construction Company alleged that defendants GAMI and Foursquare Development Corporation were joint venturers in a condominium real property development. While defendants denied such joint venture relationship existed it was assumed arguendo in considering GAMI's partial summary judgment motion, that the joint venture did exist. Based, in part, upon this assumption, the facts giving rise to this appeal may be summarized as follows:

On January 14, 1972, Construction Company entered into a building contract with Foursquare. The parties stipulated the guaranteed maximum cost of the project would be $1,085,720.00, subject to adjustment in accordance with the terms of the contract. Following commencement of the construction, work continued thereon throughout 1972. However, various disputes subsequently arose between plaintiff and defendants concerning certain expenditures made by plaintiff at the direction of the defendants. To settle their differences with the goal of completing construction, they finally reached an agreement. The terms thereof were stated in a lengthy document approved February 2, 1973, which the parties designated by the term 'modification agreement.'

In part the modification agreement reads: 'Whereas, Venture has entered into construction contemplated by the Construction Contract and continues in construction as of the date of this Agreement; and Whereas, in the course of the above described construction certain changes were authorized and approved by Foursquare, or its representatives, and certain good faith disputes have arisen about other change orders; and Whereas, the parties hereto wish to modify the Construction Contract . . . in accordance with terms set forth below in an attempt to achieve successful completion of (the) Project; now, therefore, the parties hereto for and in consideration of the covenants and promises set forth below do hereby agree as follows: 1. The guaranteed maximum cost of $1,085,720.00 set forth in the Construction Contract is hereby increased to a final guaranteed maximum cost of $1,157,971.68. The amount of the increase, $72,251.68 . . . shall be paid to Venture in accordance with the terms of this Agreement.'

Following this contractual settlement of its dispute with defendants, plaintiff completed construction of the condominium project. Despite plaintiff's demand for payment, defendants refused to pay plaintiff any monies after September 12, 1973, when $26,478.00 remained owing under the original agreement. Moreover, defendants were unable to pay plaintiff the agreed amount of $72,251.68 established by the modification agreement as the increased cost over the original agreed maximum.

This suit was then instituted. Damages claimed are $26,478.00 under the original contract, $72,251.78 representing the cost increases of the change orders agreed to in the modification agreement, and $97,987.15 in '. . . additional direct costs for the completion of the work . . .' (R. 12). This last item is contested by GAMI on the basis that it was settled by the modification agreement and constituted an accord and satisfaction. The trial court sustained this contention. Construction Company has taken this appeal from that partial summary judgment. Held:

1. Appellant's able attorney ardently argues that the modification agreement was not supported by a valid consideration; that, therefore, the agreement amounted to a mere executory accord; that there had been no satisfaction of the accord; and that, accordingly, plaintiff is entitled to seek the 'additional direct costs' in paragraph 12 pursuant to a theory of implied contract. This argument is erroneous.

First, we do not construe paragraph 12 as setting forth a quantum meruit claim for relief. It neglects to mention implied contract; and, more importantly, it fails to disclose the 'reasonable value' of the services rendered. Second, even assuming that a quantum meruit claim is set forth, the claim must fail for the reasons presented below.

In Riley & Co. v. London Guaranty etc. Co., 27 Ga.App. 686, 109 S.E. 676, this court noted: 'All claims, whether disputed or undisputed, may furnish the subject-matter of an agreement in accord and satisfaction, provided such agreement, like all other contracts, is supported by a consideration. When such a valid plea is proved as laid, the rights of the creditor are controlled thereby. (a)...