Opinion
13190.
MAY 17, 1940. ADHERED TO ON REHEARING, JULY 9, 1940.
Equitable petition. Before Judge Hardeman. Emanuel superior court. October 31, 1939.
D.C. Jones, Alfred Herrington Jr., Oliver Oliver, and F. B. Davis, for plaintiffs.
I. W. Rountree, A. S. Bradley, and Price Spivey, for defendants.
1. "A submission [to a common-law arbitration] may be in parol, . . when the matters in dispute do not exceed in value the sum of $500; but all submissions by persons acting as trustees, as above, must be in writing". Code, § 7-104. In so far as the petitioning contractors sought specific performance of the written award made by arbitrators, finding that the plaintiff contractors had failed to properly complete certain items of the church building in question, and estimating the cost of such changes or additions, and specific performance of an alleged collateral agreement that the plaintiffs should have the option of deducting the estimated cost as might be found by the arbitrators from the balance due to the plaintiffs on the purchase-price, or of doing the work themselves, the petition alleging that the plaintiffs had elected to complete themselves the items found in the award by the arbitrators, — the petition sought, at least in part, specific performance of a common-law award, where the matters in dispute exceeded the value of $500, and where also the alleged submission was "by persons acting as trustees". Accordingly, the "submission" must have been in writing.
2. While it is the general rule that upon demurrer, when the question of the statute of frauds, analogous to the statute in this case, arises, the contract will be presumed to have been in writing, and this rule will apply even in a suit for specific performance relating to land ( Crovatt v. Baker, 130 Ga. 507 (3), 513, 61 S.E. 127), and that the right to plead the statute is generally waived where the question is not specially pleaded or raised in the trial court ( Tift v. Wight Co., 113 Ga. 681 (2), 39 S.E. 503, and cit.; Marks v. Talmadge, 8 Ga. App. 557, 559, 69 S.E. 1131), such a rule as to waiver does not apply in a suit for specific performance, where the plaintiff, in order to show himself entitled to that remedy, which is not generally granted in cases of parol contracts, must bring himself within the Code, § 37-802, or other recognized exceptions. In such a case, where "the plaintiff is seeking affirmative equitable relief," it is "incumbent upon him to bring his case within the statute;" and if he fails in the trial to do so, and "the evidence [shows] affirmatively that [the contract] was not in writing," the evidence will not authorize a decree for the plaintiff, and such a decree will be reversed merely on general exceptions. Grant v. Derrick, 134 Ga. 644, 646 ( 68 S.E. 422). Accordingly, where, as in this case, an equitable petition purports to seek specific performance of a common-law award involving disputed matters in excess of $500 in value, and an alleged submission by persons acting as trustees, and where the petition with its incorporated exhibits shows on its face that the submission was not in writing, as required by the Code, § 7-104, this court in passing upon a judgment dismissing the action on general demurrer, including the ground of want of equity in the petition, will not consider the provision of § 7-104, requiring all submissions by trustees and all submissions of disputed matters exceeding $500 in value to be in writing, as waived by a failure to specifically refer in the demurrer to such omission; but will affirm the judgment on the general grounds. Especially will such a principle as to the absence of a waiver be given effect where, as here, the duties of trustees are involved. This ruling being controlling, it becomes unnecessary to determine whether under the Code, § 37-801, which declares that "specific performance of a contract . . will be decreed, generally, whenever the damages recoverable at law would not be an adequate compensation for the non-performance," equity would have jurisdiction to enforce the collateral agreement referred to; or whether, since the petitioners had already foreclosed their alleged contractors' lien in the city court, they would be relegated to the remedy of there showing, if they could, that they could rectify the defects enumerated in the award at a cost less than that estimated by the arbitrators. See Williams v. Jay, 173 Ga. 372, 374 ( 160 S.E. 426); Farmers Loan Co. v. Candler, 92 Ga. 249 (2), 253 ( 18 S.E. 540).
Judgment affirmed. All the Justices concur.
No. 13190. MAY 17, 1940. ADHERED TO ON REHEARING, JULY 9, 1940.
This suit arose on a petition for injunction and specific performance, brought by building contractors against the trustees and the building committee of a church. The essential averments are: that petitioners in 1936 made a written contract with the church, through its trustees, to erect the church building for $24,670; that the church was completed and has been occupied by the defendants; that the contract price has been paid, except an alleged balance of $8085.12; that after this balance was demanded, the defendants claimed that the contract had not been properly performed according to the plans and specifications; that in the summer of 1937 the parties agreed to arbitrate their differences, and the matter was referred to an architect and a contractor, who, on December 17, 1937, made a written award, which is not in the form of findings that any particular sums are due or not due, but contains findings as to contested items that stated work should be done or new material furnished to remedy certain stated defects, and estimates the cost of such additional work and materials. The total of these estimates appears to be approximately $2753, with an offset item of $82.75, making the total balance of the estimated cost approximately $2670. The award left open certain disputed items, without any estimate. The petition further alleged: that in order to protect their rights the petitioners had recorded their lien on August 26, 1937, for $8085.12; and that they "thereafter and within the time allowed by law . . foreclosed their lien [in the city court] because the balance due them on the contract price . . had not been paid". The date when this foreclosure proceeding was filed does not appear. It was alleged: that immediately after the award the petitioners offered, and they continued to offer, to comply with the award, and remedy all the things set out in the award; but that defendants refused and still refuse to permit them to comply with the award in any manner, and refuse to turn over to them the church building in order that the necessary additional work under the terms of the award may be done, although petitioners have so requested a number of times; that in the agreement to arbitrate it was "the express understanding that when the award was made, [petitioners] would have the right to elect to deduct from the balance due them on the contract-price whatever the arbitrators said it would cost to make the building fully comply with the plans and specifications . . or to do the work themselves at their own cost in a manner complying with what the arbitrators by their award said was necessary to be done for the building to be erected, as shown by the plans and specifications;" and that petitioners "can fully comply with all the things contained in the award by doing the work themselves at less than 1/2 the cost estimated by the arbitrators, and for petitioners to be refused the right which they had under the submission of the whole matter . . will cause them to suffer damage and loss in the sum of $2000 or other large sum". The averments further show that the lien foreclosure is still pending in the city court; and petitioners allege that they can not dismiss such suit without losing their lien on the church building and premises; that the suit "involves under the pleadings certain principles which the city court can not legally adjudicate;" and that petitioners have no adequate remedy at law to compel the defendants to comply with and perform according to the stipulations contained in the award.
With reference to whether any written submission to arbitration was made, it was alleged: that a meeting was held in the church building on August 26, 1937; that "at this meeting some of the differences were adjusted, and the remainder of the differences or complaints raised by the building committee of said church was referred to W. B. Clarke [the architect] for adjustment in consultation with an experienced contractor not interested in either party;" that at this meeting, Mr. W. B. Clarke . . requested that a copy of the items presented by the building committee . . be mailed to him, and this was done by C. I. Hall, chairman of the building committee, under date of September 1, 1937." A copy of this unsigned memorandum, embodying the corrections and additions claimed by this committee, is attached to the petition, marked Exhibit B. The petition shows that the architect and the disinterested contractor examined the church building, "with a view of ascertaining whether or not the complaints made by the building committee of said church were meritorious, . . and made up an award on December 17, 1937, and mailed a copy of same to the building committee of the . . church and to the petitioners." A copy of said award is attached and made part of the petition, marked Exhibit C. The petition of the contractors is against the church and the named trustees of the church, who "are also members of the building committee of said church." The original building contract, pleaded in the petition, was signed by the contractors and by the church by the named "Chairman of the Board of Trustees and Building Committee." Exhibit A, above referred to, is not only unsigned but is addressed to no one, and merely states: "The Building Committee of the Swainsboro Methodist Church find the following corrections and additions to be made on church by contract;" this being followed by a statement of alleged defects in the building. While thus setting forth the claims, this memorandum does not include any statement of any submission to the alleged arbitrators. Exhibit C, making the alleged award or findings, signed by the architect and the disinterested contractor, was addressed to "The Building Committee, Swainsboro Methodist Church." It indicates that a copy was sent to the plaintiffs, and, without making findings as to any specific moneys awarded in favor of or against the contending parties, sets out specific findings as to defects in the construction, and states an estimate of the cost of remedying each of these items. The total amount stated exceeds $2000. The petition alleges that, if the plaintiffs are refused the right to complete the work themselves under their alleged collateral agreement, they will suffer damage and loss of $2000 or other large sum. The alleged balance due to the plaintiffs on their contract was $8085.12. References in the last-mentioned letter of the architect and disinterested contractor to preceding negotiations, in so far as they may throw light on whether there was any previous written submission to arbitration, are as follows:
"In June, 1937, Mr. Clarke of this firm received a request from Rev. Charles G. Earnest, to come to Swainsboro to inspect the newly completed church building . . for which this firm prepared the drawings and specifications. Mr. Clarke did so; but the inspection then made, due to time, was not complete. Under date of June 28, 1937, Levy Clarke received from [the] contractors a statement of additions and deductions to the amount of the contract, a copy of which was mailed, on July 3, 1937, by Levy Clarke to Rev. Charles G. Earnest. By consent of the building committee and of the contractors, Mr. Clarke was requested by all concerned to attend a meeting to be held in the church building on August 26, 1937. At this meeting the letter of the contractors to Levy Clarke and the letter from Levy Clarke to the contractors, under date of July 3, 1937, were discussed together with the items presented by the building committee. Some items were adjusted, and some were referred to Mr. Clarke to adjust in consultation with an experienced contractor selected by him, who was not a resident of Swainsboro, and who was not interested in either party. Mr. Clarke requested that a copy of the items presented by the building committee be mailed to him, and this was done by Mr. C. I. Hall under date of September 1, 1937." This unsigned memorandum, making no reference to any submission, is pleaded in the petition as Exhibit B, and is above described.
The prayers of the petition are: "that the defendants be restrained and enjoined from using said church building for church purposes or any other purpose until they grant to petitioners the right to carry out and put in effect the award made by the arbitrators;" that "the defendants be restrained and enjoined from trying the case pending in the city court of Swainsboro, upon the foreclosure of the contractors' lien against the church building and the premises on which it is located, until the further order of this court;" that "the defendants by proper order of this court be required to specifically perform the award of the arbitrators set out in the above petition, so as to permit the petitioners to comply with said award in making the erection of said church building fully comply with the plans and specifications mentioned in said contract for the erection of said building;" and that "the petitioners have such other and further relief in the premises as may seem just and proper in law or in equity."
The superior court dismissed this action, upon general demurrer of the defendants, on the grounds that the petition contained no equity and showed no grounds for equitable relief; that it sought in effect a mandatory injunction to "eject the defendants from the premises of which [they] are in possession;" that petitioners sought to enjoin a trial in a cause filed by themselves; and that "the petition shows on its face that petitioners are barred . . under the doctrine of election of remedies, in that they sought to sue the defendants in the city court . . for the full balance due, claiming the full performance on [their] part . . of their contract," and, "having elected to pursue such remedy at law to foreclose a statutory lien, [they] are conclusively bound by such election of remedies, and therefore have no right to the equitable relief now prayed."