Opinion
40960.
DECIDED NOVEMBER 19, 1964.
Action on contract. Fulton Superior Court. Before Judge Shaw.
A. C. Latimer, J. Lee Perry, for plaintiff in error
Westmoreland, Hall Pentecost, Donald E. O'Brien, contra.
1. The ante litem notice provisions of Code Ann. § 69-308 do not apply to claims arising out of a breach of contract.
2. Where special demurrers attacking the failure of the petition to incorporate a copy or the substance of the contract for the breach of which the action is brought are sustained with 30 days leave to amend, the failure to amend within this time should have resulted in the dismissal of the petition, since the deficiency related to the entire cause of action.
DECIDED NOVEMBER 19, 1964.
J. J. Black Co. brought an action against the City of Atlanta, Toombs, Amisano Wells and Chastain Tindel, Inc. to recover damages for losses and expenses incurred as a result of the action of the defendants in allegedly delaying, in bad faith, the plaintiff's performance under a contract for the construction of a school building. The petition as amended alleged substantially as follows: That the Board of Education of the City of Atlanta accepted and approved the bid of the plaintiff general contractor to construct Harper High School and the contract was duly approved by the city; that the defendants Toombs et al. and Chastain Tindel, Inc. were employed by the city and the board of education as the architects and the structural engineers and consultants, respectively, for this project; that there was a duty and obligation on behalf of the defendants not to delay, hinder or interfere with the performance of said construction contract and the carrying out of the construction of said Harper High School, and the defendants have violated and breached this duty and obligation as hereinafter set out; that the defendants, Toombs et al. and Chastain et al. designed the roof to be made of unusual and unconventional design; that on March 1, 1962, the plaintiff commenced construction of the concrete roof, placing concrete thereon on March 22, and April 3, 11, 17 and 19, 1962, all in accordance with the plans and specifications; that after approximately 30% of the roof area had been placed by the plaintiff, the defendant architect sent the plaintiff a letter dated April 25, 1962, enclosing a letter dated April 23, 1963 (sic) from the defendant Chastain et al., advising the plaintiff that the concrete on the roof was not acceptable; that on April 30, 1962, the defendant architects notified the plaintiff that it would be necessary to load test the roof structure before it would be accepted; that on May 4, 1962, the defendant architects notified the plaintiff that the roof was condemned by them and that it was the plaintiff's obligation to demonstrate the adequacy of the work by approved tests and methods at the plaintiff's expense; that such request by the architects was unauthorized and there was no such obligation on the plaintiff; that the architects and the plaintiff exchanged letters on May 7 and May 9, 1962, attached as exhibits; that the plaintiff employed, at its own expense, a qualified construction superintendent recommended by the architect and independent structural engineers and contractors to examine the roof structure and they were of the opinion that it was sound and average or better work and that there was no necessity to load test it and no reason to condemn it; that on May 18, 1962, the architects notified the plaintiff that the concrete roof slab and overhangs, poured and placed through May 16 and since their May 4 letter, were condemned as failing to conform to the contract; that on May 22 the plaintiff notified all the defendants by letter of the findings and opinions of those it had employed to examine the roof structure, but the defendants persisted in performing a load test before approving or accepting the roof; that such test could not be performed until the concrete had set for 56 days; that the test, which was performed July 20-24, showed the roof to be sound, of good workmanship, completely accurate and constructed in accordance with the plans and specifications; that the requiring of the load test forced the plaintiff to delay construction for a total of 92 days, from May 1 until July 31; that on August 1, the architects notified the plaintiff that the roof was accepted subject to its being patched satisfactorily, which requirement was capricious, arbitrary and in bad faith, as was the load test requirement, causing the plaintiff to incur certain alleged unnecessary and extra losses and expenses in the amount of $56,763.01; that defendant Chastain et al. was the agent of defendant Toombs et al. and both were agents of the defendant city; that thereafter the project was completed by the plaintiff and officially accepted by the architects and the city on December 27; that the contract price of the contract has been paid to plaintiff but that the defendants have failed and refused, and still fail and refuse, to pay to plaintiff the losses and expenses caused by the aforesaid action of the defendants. (Italicized portions above were added by amendment.)
The general demurrers of defendants Toombs et al. and Chastain et al. were sustained. The defendant city filed general and special demurrers to the original petition, special demurrers and objections to the plaintiff's amendment and motion to strike same and renewed demurrers to the petition as amended. The court overruled all of the above pleadings with the exception of three special demurrers, noting that the plaintiff had stated in open court that it was suing for breach of contract, and allowed 30 days from the date of the order, July 7, 1964, in which to amend the petition by attaching a copy of the contract which necessarily formed the basis for the action. The plaintiff did not amend the petition thereafter, and the defendant excepts to the judgment of the court in overruling its pleadings hereinabove mentioned.
1. The plaintiff in error city, in arguing its general demurrer, contends that the petition was fatally defective in that it failed to allege compliance on the part of the plaintiff contractor with the ante litem notice requirements of Code Ann. § 69-308. This statute is in derogation of the common law, which did not require such ante litem notice; therefore it must be strictly construed and not extended beyond its plain and explicit terms. Sears v. Minchew, 212 Ga. 417 ( 93 S.E.2d 746); Duncan v. Entrekin, 211 Ga. 311 ( 85 S.E.2d 771); Foster v. Vickery, 202 Ga. 55, 60 ( 42 S.E.2d 117), and citations. The statute requires the ante litem notice for claims "on account of injuries to person or property." "Property" at common law was limited to tangible realty or personalty, and therefore cannot be extended to include property rights in contracts. The purpose of the law, as expressed in Mayor c. of Buford v. Light, 65 Ga. App. 99, 100 ( 15 S.E.2d 459), "was simply to give to the municipality notice that the citizen or property owner has a grievance against it. It is necessary only that the city shall be put on notice of the general character of the complaint, and, in a general way, of the time, place, and extent of the injury. . ." In the case of claims arising out of contracts, as contrasted with torts, the city, being a party to the contract, is already on notice as to the existence and the circumstances of the contract which is the basis of the claim; therefore the reason for such notice does not exist.
2. "Copies of contracts . . . should be incorporated in or attached to the petition in all cases in which they constitute the cause of action, or the relief prayed for must be based thereon." Code § 81-105. Failure to do so may be taken advantage of by a timely special demurrer. Reed v. Equitable Trust Co., 115 Ga. 780 ( 42 S.E. 102). See also cases cited in Keith v. Darby, 104 Ga. App. 624, 625 (2) ( 122 S.E.2d 463). "Where a special demurrer to a petition is sustained, with leave to amend, and there is a failure to do so, the petition should be dismissed if the delinquency relates to the entire cause of action. . . . White v. Little, 139 Ga. 522 (3) ( 77 S.E. 646); Beermann v. Economy Laundry Co., 153 Ga. 21, 22 ( 111 S.E. 399); McSwain v. Edge, 6 Ga. App. 9, 11 ( 64 S.E. 116); Elliott v. Orange Crush Bottling Co., 56 Ga. App. 313, 315 ( 192 S.E. 530)." Cheatham v. Palmer, 191 Ga. 617, 619 (5) ( 13 S.E.2d 674).
In the instant case the suit was for breach of contract, as appears from the allegations of the petition and the plaintiff's own statement in open court. The plaintiff was given 30 days in which to amend its petition in order to cure the defect pointed out by the three special demurrers of the defendant which were sustained, namely: the failure to incorporate the terms and conditions of the contract or attach a copy thereof to the petition as an exhibit. The plaintiff failed to amend its petition thereafter. This deficiency relates to the entire cause of action for the reason that it cannot be determined whether a breach of the express or implied terms and conditions has occurred without their being incorporated in or attached to the petition. It follows that the court should have dismissed the petition on general demurrer after the plaintiff's failure to amend at the expiration of the 30 days allowed for amendment.
Judgment reversed. Frankum and Pannell, JJ., concur.