Williams v. Claussen-Lawrence Const. Co.
| Decision Date | 10 July 1969 |
| Docket Number | No. 44230,CLAUSSEN-LAWRENCE,No. 2,44230,2 |
| Citation | 120 Ga.App. 190,169 S.E.2d 692 |
| Parties | Walter B. WILLIAMS, Jr. v.CONSTRUCTION COMPANY |
| Court | Georgia Court of Appeals |
Joseph B. Duke, Milledgeville, for appellant.
Robert H. Herndon, Milledgeville, Fulcher, Fulcher, Hagler, Harper & Reed, J. Walker Harper, Augusta, for appellee.
Syllabus Opinion by the Court
Plaintiff entered into a written agreement with defendant to construct approximately 3,000 feet of two-foot curb and gutter at a price of $1.50 per linear foot, approximately 2,500 feet of two-foot drive-over curb at $1.40 per linear foot and to lay two-inch asphalt paving at $1.25 per square yard. The work was to be performed at two locations, in driveways at Carrington Woods Apartments and in Cardinal Road in a subdivision under development by defendant. Payment was to be made 'upon completion of job.' Plaintiff brought this action as a suit on an account to recover $7,089.35 for construction of 2,104 feet of drive-over curb and laying 3,315 square yards of paving on Cardinal Road. The defense was that plaintiff had not completed the contract, the paving in the apartment driveways being defective because plaintiff laid less than the specified two inches of asphalt. Defendant took this appeal from the grant of summary judgment for plaintiff for the work performed on Cardinal Road. Held:
The allegations of the complaint and the demand for judgment were based on the prices stipulated in the written agreement and not upon the reasonable value of the services. Thus it was not brought on the theory of quantum meruit. The written agreement was not declared on and did not constitute the cause of action but this was a suit on account based on a special agreement. See Talbotton R. Co. v. Gibson, 106 Ga. 229, 234, 32 S.E. 151. Notwithstanding it is a suit on account, rather than upon the contract, there can be no recovery based directly on the contract provisions for payment unless the plaintiff has complied with other provisions of the contract as conditions precedent to the right of payment. Finn v. Carden, 100 Ga.App. 270, 274, 110 S.E.2d 693.
In an indivisible contract the entire fulfillment of the promise by either, in the absence of any agreement to the contrary, or waiver, is a condition precedent to the fulfillment of any part of the promise by the other. Code § 20-112; Dolan v. Lifsey, 19 Ga.App. 518(2), 91 S.E. 913. 'In determining whether the contract is entire or severable, the criterion is to be found in the question whether the whole quantity, service or thing-all, as a whole-is of the essence of the contract.' Burns v. Mitchell, 55 Ga.App. 862, 191 S.E. 870. The contract here provided for payment only upon completion of the job, singular. Whenever there is a contract to pay a gross sum for a certain and definite consideration, the contract is entire, and is not apportionable either at law or in equity. Barnes v. Goodner, 77 Ga.App. 448, 450, 49 S.E.2d 128. The contract between these parties was an entire one notwithstanding that it contemplated successive performances at two locations. Broxton v. Nelson, 103 Ga. 327, 330, 30 S.E. 38; Burns v. Mitchell, 55 Ga.App....
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