Opinion
36117.
DECIDED MARCH 14, 1956.
Action on contract. Before Judge Shaw. Fulton Superior Court. January 6, 1956.
Noah J. Stone, for plaintiff in error.
E. B. Shaw, contra.
Since the evidence demanded a finding that the contract upon which this case is based was completely performed by the plaintiffs, the trial court erred in overruling the motion for judgment notwithstanding the verdict.
DECIDED MARCH 14, 1956.
Judson Andrews and T. Blake Jackson filed a petition in the Superior Court of Fulton County alleging in substance that the defendant, Lucy Bickerstaff came to the plaintiffs' office in June, 1953, for the purpose of perfecting title to certain property located in Atlanta, Georgia, and to arrange for repairs and a loan to finance the same; that the conversations resulted in a contract of employment, copy of which is attached; that the plaintiffs in the Court of Ordinary in Fulton County had the property set aside to the defendant as a year's support; that they thereafter performed all the stipulations of the contract and obtained a loan commitment in the sum of $1,500 to pay for said repairs; that they obtained a rent increase; that the defendant refuses to pay the contract price and it is necessary to have a receiver appointed for the purpose of collecting and preserving the rents. A judgment against the defendant, and that it be made a lien on the property, is also prayed.
The defendant answered and alleged that the plaintiffs' claim was perpetrated by fraud and trickery; admitted that the plaintiffs had the property set aside to the defendant for a year's support, but alleges that the defendant is 74 years of age and cannot read and signed papers presented to her and did sign certain papers without reading them, but that no conversations were had concerning repair work and all that she wanted was to have her title to the property perfected; that, further, there has been a failure of consideration in that the work performed by the plaintiff is completely worthless, for which reason the City of Atlanta now demands that further work be done; that the plaintiff actually damaged the property in the sum of $750 by the work done thereon.
Upon the trial the plaintiff and another attorney testified that the defendant brought him a paper from the Slum Clearance Department of the City of Atlanta; that he and the defendant then went out to look at the house, and when they returned the plaintiff prepared the contract for repairs in accordance with the work demanded by the Slum Clearance Department. Although the defendant denied any conversations concerning repair work, she did not deny that she brought this paper to the plaintiff, and the evidence is undisputed that it was the same notice which was sent by the department to her agent, Sharp Boylston Company. Nor is the plaintiff's testimony denied that "I was to have the work done in compliance with the city requirements."
The evidence is undisputed that the work was done in conformity with the requirements of the Slum Clearance Department, and its enforcement officer, the building inspector, testified that he examined it on completion and found it safe and up to the required standards. It is also undisputed that the plaintiff spent $1,159.48 on materials and labor for the work. In addition, he obtained the approval of a loan in the sum of $2,500 to be secured by the property (this being included in his contract with the defendant); had the rents of the two units materially increased in accordance with a power of attorney given him by the defendant for that purpose, and removed a cloud from the title of the property (which was in the name of her deceased husband) by having it set aside to her in the court of ordinary as a year's support. For court costs in this matter he advanced the sum of $25.
The defendant offered testimony that the repairs had not been properly performed, and also insisted that she had gone to the plaintiff's office for the sole purpose of obtaining quit-claim deeds to herself from other heirs of her deceased husband, that she knew nothing about the plaintiff having the property fixed up until after it was done, that she had not wanted the rents raised, and that she owed the plaintiff nothing.
The jury returned a verdict for $500 in favor of the plaintiff. Based on his motion for a directed verdict he thereafter moved for judgment notwithstanding the verdict in the sum of $1,500, and the denial of this motion is assigned as error.
The verdict of the jury contrary to the contentions of the defendant that she had not entered into any contract of any sort with the plaintiff, and that her signature on the various instruments was procured by fraud and without her knowledge, disposes of these contentions and is an adjudication that the contract pleaded and proved by the plaintiff was valid and subsisting. It therefore remains to be determined by this court only whether the plea of total failure of consideration, which includes a plea of partial failure of consideration (see A. E. Speer, Inc. v. McCorvey, 77 Ga. App. 715, 49 S.E.2d 677) was sustained so as to support the verdict in the sum in which it was returned. Indeed, the total evidence in the record, including letters which the plaintiff wrote to the defendant and answers which he received, written by the defendant's daughter, as well as testimony as to what work was done and the amounts expended therefor, leaves no room for doubt as to the good faith of the plaintiff in undertaking this commission and the conclusion that the amount charged for his services, provided that they were properly performed, was reasonable.
Where, as here, the contract under consideration is entire and not severable, the general rule is that once the plaintiff has prima facie showed a compliance therewith the burden is upon the defendant to sustain his plea of total or partial failure of consideration. As to the latter, a verdict allowing the defendant the benefit of a partial failure of consideration is unauthorized where there is not sufficient evidence from which it may be determined with some degree of certainty what part of the total consideration has failed. Myers v. Philip Carey Co., 17 Ga. App. 535 (2) ( 87 S.E. 825); Stanfield v. Columbus Casket Co., 46 Ga. App. 84 (2) ( 166 S.E. 784); Frick Co. v. Lawson, 50 Ga. App. 511 ( 179 S.E. 274); Hall v. Southern Sales Co., 81 Ga. App. 392 ( 58 S.E.2d 925). The trial court in his opinion took the position that these cases did not apply for the reason that the plaintiff had failed to prove a prima facie case. He based this upon the fact that the contract listed certain types of repairs, such as repairing and replacing flooring "where needed"; that the contract was accordingly not complete within itself and the plaintiff had failed to prove that he did all work needed, or at most had failed to make more than a jury issue as to this question. Were the contract standing alone, complete without aid of explanatory testimony in the record, we would agree with this view of the case. However, words such as "where needed" open the door to the introduction of parole testimony. Construing the contract with the explanatory testimony offered, it becomes evident that the words mean simply "where needed to comply with the requirements of the Slum Clearance Department so as to prevent its condemnation proceedings, now threatened, from being instituted against the property." This conclusion is drawn from the fact that the contract in substance follows the requirements of the condemnation notice which the defendant received from her rental agent and brought with her to the plaintiff's office, plus the testimony of the plaintiff to this effect that the work should be done "in compliance with city requirements." The defendant denied that she entered into any such contract, a denial which was greatly weakened by her own evasive and self-contradictory testimony, and which the jury did not believe. The purpose of the contract, provided one was made, is undisputed. That the contract was performed in such manner as to entirely fulfill its purpose is shown without dispute by testimony of the building inspector that he examined the work upon its completion and found it safe, in keeping with the type of building and the community, and that the work required by the city had been performed. The inspector had examined the building before commencement of the repairs, during their progress, at their completion, and again 18 months later, and testified that although there was some deterioration evident at the time of the last visit it was not sufficient to warrant another notice. The surrounding circumstances may be proved in aid of the construction of contracts. Albany Federal Savings Loan Assn. v. Henderson, 200 Ga. 79 (3) ( 36 S.E.2d 330). "In construing contracts, it is important to look to the substantial purpose which must be supposed to have influenced the minds of the parties, rather than at the details of making such purpose effectual." Illges v. Dexter, 77 Ga. 36. The intention of the parties in entering into the contract being established as an intention (a) to repair the building as stated therein for the purpose of complying with city requirements, and (b) to thereafter obtain a loan commitment to pay for such repairs, the evidence demands a finding that these purposes were accomplished, regardless of testimony of persons who examined the premises on behalf of the defendant some time after completion of the repairs to the effect that they had not been properly made.
Accordingly, in view of the fact that the jury found for the plaintiff on the question of whether there was a valid contract, which finding is not in any way attacked here, a verdict for the plaintiff for the full contract price was demanded. The trial court erred in overruling the motion for judgment notwithstanding the verdict in the principal sum of $1,500.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.