Opinion
42326.
ARGUED SEPTEMBER 9, 1966.
DECIDED JANUARY 27, 1967.
Action on note. Fulton Civil Court. Before Judge Langford.
Ross Arnold, for appellant.
Archer, Patrick Sidener, James H. Archer, Jr., for appellee.
Where in defense to a suit on a note the defendant files a cross action alleging that the plaintiff contracted to supervise the construction of a dwelling for the defendant and breached the contract in certain particulars by failing to supervise the construction of the dwelling, and the cross action shows that the defendant is entitled to some, if not all, of the items claimed as damages in the cross action, it is error for the trial judge to sustain a motion to dismiss the cross action. Blalock v. Barrett, 28 Ga. App. 444, 446 ( 111 S.E. 697); Bailey Carney Buggy Co. v. Guthrie, 1 Ga. App. 350 (3) ( 58 S.E. 103). Under these circumstances the judgment in favor of the plaintiff must be reversed.
Judgment reversed. Felton, C. J., and Frankum, J., concur.
ARGUED SEPTEMBER 9, 1966 — DECIDED JANUARY 27, 1967.
P. E. Stanton filed suit on a note against C. L. Andrews in the Civil Court of Fulton County. The defendant, in a pleading referred to as answer and cross bill, answered the allegations of the petition and further answered by alleging that the plaintiff and defendant entered into a contract attached and marked Exhibit "A" and further alleged: "In the above-stated contract, the plaintiff herein agreed to supervise the building of defendant's residence from beginning to finish; defendant shows that plaintiff did not keep the above covenant and did not supervise the construction of defendant's residence from beginning to finish; defendant show that plaintiff breached said covenant in the following particulars:
"(1) Destruction of large shade oak tree on defendant's property, said oak tree did not impede the construction of defendant's house. Value of tree: $1,010.
"(2) Improper construction of one slab concrete driveway causing said driveway to erode rapidly and force replacement of said driveway. Cost to repair and rebuild, $780.
"(3) Plaintiff did not do a workmanlike job on the wash tubs in the utility bathroom and did not install them as ordered, damaging defendant $48.
"(4) Holes were left in the mortar of the brick veneer on all sides of defendant's house, and plaintiff did defective construction of the well around north basement windows of said house, damaging defendant $36.
"(5) Plaintiff has not given defendant the warranties nor the instructions on operation or maintenance of the hot water heater or attic fan installed in said house, damaging defendant $15.
"(6) Sliding glass doors in said house will not latch properly and cannot be locked, damaging defendant $10.
"(7) Separation between wall paper and ceiling finish, leaving crack about one-eighth inch wide, in master bathroom, making bathroom unsightly, damaging defendant $132.
"(8) Furnace flue leaked, staining ceiling in study, which stain remains after repairing leak, damaging defendant $24.
"(9) Plaintiff installed a chipped mirror, 56 inches by 24 inches, in one of the bathrooms, cost to reinstall a new mirror, $24.
"(10) Patio was finished and colored in a most unworkmanlike manner. Too much dye was used, diluting the cement. Even now a person walking across the patio has yellow dye cling to his shoes, which tracks into defendant's house. Because of dye and unworkmanlike construction of patio, the surface has crumbled and continues to crumble, requiring the construction of an entirely new patio, which would cost $595.
"Defendant further shows that he paid a total of $81.86 for materials plaintiff ordered on two different occasions from the College Park Supply Company, said materials being ordered delivered to 1330 West Garmon Road, another project of plaintiff herein at that time; defendant shows that as a result of plaintiff's breach of said agreement, he has been damaged in the sum of $2,674, which together with the $81.86 wrongful payment for supplies of plaintiff not connected to building of defendant's house, totals $2,755.86, which amount said plaintiff owes this defendant, and for which defendant is entitled to a judgment before giving plaintiff credit for $600 [the amount claimed by the defendant to be owed on the note sued upon]."
The contract was as follows:
"Exhibit `A'
"Agreement between C. L. Andrews, owner, and P. E. Stanton, builder.
"The above-named builder agrees to:
"Supervise the building of above named owner's residence from beginning to finish.
"Builder agrees to furnish owner with itemized work sheet Friday of each week.
"Builder to furnish owner with approved invoices of sub-contracts and materials as they become due.
"Builder to keep accurate records of all materials, labor sub-contracts cost.
"Builder to keep all Social Security and withholding tax records and make necessary returns on same.
"For the above named services the owner agrees to:
"Owner to pay to the builder the amount called for on the weekly work sheet upon presentation of same.
"Owner to pay subcontractors and materials cost to builder upon presentation of approved invoices.
"Owner to pay builder $3.25 per hour while on the job and 5% of cost, not to exceed 5% of $33, 916.
"The commission to be paid one-half when residence is under temporary roof, the balance when residence is completed.
"This is the complete agreement of both parties and any change in agreement shall be in writing properly signed by both parties.
Signed, C. L. A. ______________
Owner
Estimated cost $33,916.
P. E. Stanton ______________
Builder."