Opinion
33104.
DECIDED OCTOBER 28, 1950.
Complaint on contract; from Fulton Civil Court — Judge Robert S. Carpenter. March 24, 1950.
William W. Daniel, for plaintiff.
Grigsby H. Wotton, Augustine Sams, for defendant.
The allegations of the petition in this case are so vague, uncertain, indefinite, and contradictory, that it is impossible to understand upon what theory the plaintiff seeks a recovery, and under such circumstances the petition did not set out a cause of action, and the trial court did not err in sustaining the general demurrer and in dismissing it.
DECIDED OCTOBER 28, 1950.
J. M. Allison sued F. L. Allman and alleged in his petition as amended substantially the following: Count one: That the defendant had obligated himself to pay the plaintiff $1,108.06 in consideration of plaintiff performing under a contract entered into by the parties on July 26, 1948, and set out as an exhibit to the petition, labor, supervisory work, carpentry work, brick-laying, the job of getting the house under construction, and the expense of using petitioner's truck in hauling men and material to and from the job, in constructing a seven-room brick veneer house located on a certain lot described in the petition; that petitioner has performed his part of the contract as hereinafter set out, and that a balance in the amount sued for is due him; that on or about May 12, 1949, petitioner recorded his claim of lien upon said building and real estate as required by law, a copy of said claim being attached as an exhibit to the petition; that it was not intended that the contract set out should contain all the stipulations between the parties; that it was agreed that the petitioner should have the right to draw up to 75% of the contract price for the purpose of paying for labor and material during the course of his performance of the contract; but that the defendant did not make such funds ($12,200) available to the petitioner but made only $10,004.47 so available; that because of this failure of the defendant to make the funds available to the petitioner, petitioner was unable to complete the house of the defendant, as is more fully set out; that on or about December 31, 1948, defendant assumed control of the construction of the house; that he fired the painter whom the petitioner had hired, and contracted with another person to do the paining; that on or about January 19, [1949] defendant's wife started keeping time "on the men"; that on or about January 15, 1949, the defendant contracted with a third person to have all the concrete of the drive, walks and porches poured; that thereafter defendant contracted to have "trayle" floors put on the front and side porches; that defendant discharged the men petitioner had hired to grade the front yard of the house and hired another person unknown to the petitioner to do the grading; that petitioner continued to work on the house until February 24, 1949, when the house had been completed except for the painting, and the painter hired by the defendant was at work; that the petitioner completed all the work for the defendant in a substantial and workmanlike manner in accordance with the contract and specifications except where requested by the defendant to make changes; that because of the breaches of the contract by the defendant the petitioner was unable to pay himself for the time he devoted to the construction of the house; "A16. That your petitioner devoted one thousand seventy and one-half hours (1,070 1/2) to the building of said house, your petitioner is unable to itemize this into the exact amount of time he spent as a laborer, a carpenter, a supervisor, and brick layer. A17. That your petitioner was receiving to the knowledge of the defendant, two dollars ($2) per hour on the advances made on labor and material up until on or about December 24, 1948. A18. That your petitioner received from the defendant one thousand three hundred fourteen dollars and 74/100 (1,314.74). That there was a balance due him of six hundred eighty-eight dollars and 06/100 ($688.06) for the time put on said job"; that the expense of the truck was $10 per week for 27 weeks; that petitioner expended the sum of $150 in getting the job under way; that the weather, breach and interference of the defendant was responsible for the petitioner not completing the house within five months as called for in the contract; that the expenses of the plaintiff in connection with getting the job under way, and in connection with the use of the truck, and the amount claimed for time of the petitioner in working on the job are damages which arose naturally from the breach of the contract and were such as the parties contemplated.
Count two of the petition is substantially like count one except the plaintiff sets out certain changes in the plans and specifications for the house made pending its construction and incorporated in it and he concludes count two by alleging: "That the said contract has been disregarded as indicated and that therefore your petitioner is entitled to the reasonable value of his services and the use of his truck used in enriching the defendant."
The contract referred to in the petition as an exhibit is as follows: "Georgia, Fulton County: This agreement made and entered into on this the 26th day of July, 1948, by and between Fred L. Allman hereinafter referred to as `owner' and J. N. Allison hereinafter referred to as `contractor', "Witnesseth:
"The undersigned contractor for and in consideration of the sum of sixteen thousand eight hundred dollars, agrees to build for the undersigned owner a dwelling or residence in accordance with plans and specifications hereto attached and made a part of this contract and to furnish all material and labor necessary for said erection, said building to be located on the following described property, to wit: 4104 Club Drive N.W.
"2. The work on said building shall begin within 7 days of the signing of this agreement and shall be completed within five months, or in a reasonable time thereafter.
"3. It is agreed that the sum of twelve thousand two hundred dollars, shall be paid to the contractor during the course of construction, as said work progresses, but in no case more than 75% of the material and labor used in the erection of said building up to the time such disbursement or disbursements are made.
"4. The contractor agrees that he will remove all trash and debris from the above described premises and leave the house broom clean.
"5. Upon the completion of said building, in accordance with said plans and specifications, the contractor shall furnish to the owner evidence in the form of a contractor's affidavit that all bills both for labor and materials have been paid in full, and upon the presentation of such affidavit the owner shall pay to the contractor the balance due under this contract.
"In witness whereof, the parties hereto have set their hands and affixed their seals the day and year first above written." The contract is then signed by both the plaintiff as the "Contractor" and the defendant as the "Owner."
The defendant demurred to the petition as amended generally on the ground that no cause of action was set forth; that the petition as amended is too vague, indefinite, and inconsistent to set forth a cause of action; and specially on the ground that the amended petition sets up a new and distinct cause of action inconsistent with the original action and constituting a misjoinder of causes of action; and on the ground that the petition shows on its face that it is a suit to foreclose a contractor's lien based on a contract as an exhibit, while the allegations of the petition as amended allege a breach of contract and an indebtedness on quantum meruit. Certain paragraphs of the petition were demurred to specially on the ground that they set up a misjoinder of causes of action, that they were duplicitous, evasive, inconsistent and contradictory to the cause of action sued upon, and upon the ground that certain paragraphs constituted conclusions of the pleader or were irrelevant and immaterial to the cause of action sued upon. The trial court entered the following order on the demurrers: "The within general demurrers to the plaintiff's petition as amended to count one and count two are sustained, and said petition is dismissed." To this order and judgment the plaintiff excepted.
We have only the question of whether the allegations of the petition are sufficient to withstand the general demurrers. Under the allegations it is impossible to ascertain upon just what theory the plaintiff seeks a recovery. He begins his petition by alleging that on July 26, 1948, the defendant became obligated to pay him the sum of $1108.06. Presumably he is referring to the contract set out as an exhibit, and intends to say that under this contract the defendant became so obligated. However, that instrument, as will be seen, has no reference to any such figures as alleged to be due. Further, he alleges that such obligation arose in consideration of the plaintiff's labor, supervisory work, carpenter work, brick laying, etc., but in the contract it appears that the defendant agreed to pay $16,800 to the plaintiff to build a dwelling or residence in accordance with certain specifications, and to furnish all labor and material therefor. Then plaintiff alleges that he recorded a lien on the premises in question, and he prays for a special judgment setting up such lien for the amount he claims in his petition to be due; but elsewhere in the petition many of the allegations are more appropriate to a mere action ex contractu or for a breach of contract. These two forms of action are inconsistent with each other, and are not properly joined in one and the same cause.
The contract provides simply that the plaintiff is to build for the owner the dwelling and furnish all labor and materials. Plaintiff alleges that the defendant "assumed control of the construction," fired the painter hired by the plaintiff and contracted with another person to do the painting, that defendant's wife kept time on the men, that defendant employed some third party to pour concrete drives, walks, porches and to set "trayle" floors, and that he hired still another person to grade the front yard of the house, firing one hired by the plaintiff to do this work. However, nothing in the petition or in the contract attached as an exhibit tends in any way to show that such acts necessarily constituted a breach of the contract or how or wherein such acts on the part of the defendant (if they did constitute breaches — it being nowhere expressly alleged that such acts constituted breaches) damaged the petitioner or what relation such acts had with the damages sought to be recovered.
The only material difference between count one and count two of the petition (as has been already noted) is that in count two the plaintiff lists some 18 changes in the specifications for the work which he alleges that at various times during the progress of the work the defendant insisted be made. While impliedly he says that these "changes" were things not included in the original contract, he nowhere specifically alleges this as a fact. Neither is it expressly alleged that these changes constituted a breach of the contract. So far as appears from the petition they were merely novations agreed upon by both parties.
Petitioner says that he was receiving $2 per hour for his services and that, based on 1070 and 1/2 hours' work, he was entitled to receive $688.06 more, he having received already $1,314.74. Apparently his allegations in this regard, taken with his allegations concerning the use of his truck for 27 weeks at $10 per week plus his claim of $150 for "getting the job under way" make up his claim for $1108.06. However, these allegations fly in the very teeth of the contract which says nothing about the plaintiff receiving $2 per hour or $10 per week for the use of his truck or $150 for getting the job under way, but merely provides that he is to receive $16,800 for the complete job of building the dwelling of the defendant. Furthermore, an analysis of the figures furnished in the plaintiff's petition completely fails to reveal how he arrived at the figure of $688.06 as the balance due.
"Indefiniteness in pleading should, as a rule, be raised by special demurrer; yet a petition which is too vague and indefinite to support a recovery may properly be dismissed on general demurrer." Johnson v. Edwards, 147 Ga. 438 ( 94 S.E. 554). The allegations in the petition in the case at bar are not merely vague, uncertain, and indefinite, but they are so inconsistent and repugnant to one another, when taken in connection with the matter contained in the exhibits to the petition, that they neutralize and utterly destroy one another. "In such case the petition is fatally defective, and thus subject to general demurrer." Adams v. Johnson, 182 Ga. 478 ( 185 S.E. 805). The petition in this case does not show by consistent and uncontradictory allegations a cause of action based either on the reasonable value of the services of the plaintiff in supervising the construction of a dwelling and in working as a carpenter, brickmason, etc., nor the performance by the plaintiff of a contract whereby the plaintiff was to build a house for the defendant at a stipulated price, the plaintiff furnishing labor and materials therefor, and that a balance was due on such contract, nor any other cause of action which can be ascertained from the allegations of the petition.
Under the rules of law announced above, and under the rule that "`Where pleadings do not make distinct and positive allegations, but are ambiguous or couched in alternative expressions, on demurrer they will be given that construction which is most unfavorable to the pleader.'" Jenkins v. Dunlop Tire Rubber Corp., 71 Ga. App. 255(3) (30 S.E.2d 498), the trial court did not err in sustaining the general demurrer and in dismissing the petition.
Judgment affirmed. Sutton, C.J., and Felton, J., concur.