Summary
holding "[w]here the plaintiff bases [her] right to recover upon an express contract . . . [she] cannot recover unless [she] has performed all [her] obligations under the contract"
Summary of this case from Progressive EMU, Inc. v. Nutrition & Fitness, Inc.Opinion
36921.
DECIDED NOVEMBER 13, 1957. REHEARING DENIED DECEMBER 2, 1957.
Action on contract. Before Judge Henson. Fulton Civil Court. August 29, 1957.
William F. Lozier, Poole, Pearce Hall, for plaintiff in error.
W. S. Northcutt, Northcutt, Edwards Johnston, contra.
A person who seeks recovery under an alleged executed contract must show performance on his part or that his nonperformance was caused by the act or fault of the opposite party.
DECIDED NOVEMBER 13, 1957 — REHEARING DENIED DECEMBER 2, 1957.
F. J. Schwaemmle filed a suit against R. E. Cleveland for breach of contract.
The petition alleged in part: On or about January 1, 1956, the plaintiff and the defendant entered into an oral agreement whereby the defendant agreed to pay the plaintiff $625 per house plus one-half of the profit on each house over and above the first $1,500 of profit, for services to be rendered by the plaintiff to the defendant in supervising the construction of four houses known as numbers 3061, 3057, 3031 and 3015 Remington Street, East Point, Georgia; the plaintiff has completed his services in supervising the construction of the four houses except insofar as 3015 Remington Street is concerned, which house lacks some $200 worth of labor and material to complete and which labor and material have never been furnished by defendant; although payment of the indebtedness has been demanded, the defendant fails and refuses to pay the same; wherefore the plaintiff prays: that process issue requiring the defendant to be and appear at the next term of court to answer the complaint; that the plaintiff have judgment against the defendant for $2,500 principal, interest at the rate of 7% from the date of the petition, and costs.
The defendant filed an answer in which he alleged: that the contract entered into by the parties was that the plaintiff was to receive two-fifths of the net profits; that the plaintiff agreed to keep the costs of construction to a minimum consistent with good building practices; that the plaintiff bought materials at a cost which was in excess of that which was usually used in the type houses being constructed, "that the plaintiff, without any excuse, walked off the job leaving unfinished the interior trim work, the rebuilding of the basement steps, the glazing of the basement windows, the installation of roof vents, and with no hardware on the windows."
On the trial the jury returned a verdict for the plaintiff in the amount of $2,500 principal and $87.50 interest. The defendant's motion for new trial was denied, and he excepts.
1. Special grounds 1 and 2 of the amended motion for new trial assign as error the following charge: "Gentlemen, if you find this contract to be as contended by the plaintiff, and as expressed in his petition, as amended, then you should go no further, for in that event, the plaintiff would be entitled to recover the amount sued for, since the measures of recovery, if you find the contract to be as plaintiff contends it to be, are fixed by that contract, and the court and jury would be bound by the measure of damages plead, provided, you find that the plaintiff's version of the contract be correct, and you set it up as governing in this case."
The defendant testified that the plaintiff failed to complete house No. 3015 and he was forced to have the remaining work done himself.
The charge was error because it instructed the jury that if they found the contract to be as contended by the plaintiff then they should go no further, for in that event, the plaintiff would be entitled to recover the amount sued for. To entitle the plaintiff to a recovery under the contract it was also necessary that he prove that he had complied with its terms or had been prevented from doing so by the defendant. Bennett v. Burkhalter, 128 Ga. 154 ( 57 S.E. 231).
2. Special grounds 3 and 4 insist that the trial judge erred in instructing the jury that if they returned a verdict in favor of the plaintiff it would have to be for the entire amount he alleged was due.
The defendant insists that the judge should have instructed the jury that if they found for the plaintiff their verdict would be $625 for each house which had been completed pursuant to the contract. This contention is without merit because this was an entire contract for the construction of the four houses. Broxton v. Nelson, 103 Ga. 327 ( 30 S.E. 38, 68 Am. St. R. 97); Burns v. Mitchell, 55 Ga. App. 862 ( 191 S.E. 870). "Where the plaintiff bases his right to recover upon an express contract, which is entire and indivisible, he cannot recover unless he has performed all his obligations under the contract. Hill v. Balkcom, 79 Ga. 444 ( 5 S.E. 200); Parker v. Farlinger, 122 Ga. 315 ( 50 S.E. 98); Bennett v. Burkhalter, 128 Ga. 154 ( 57 S.E. 231); Broxton v. Nelson, supra." Dolan v. Lifsey, 19 Ga. App. 518, 519 (5) ( 91 S.E. 913).
The plaintiff having sued on the express contract he was not entitled to recover unless he completed all four houses or was prevented from doing so by the defendant.
3. Special ground 5 complains of the judge's failure to charge: "That if they found the contract to be as contended by plaintiff ($625 per house plus one-half of the profits over and above the first $1,500 of profit on each house) the amount awarded to the plaintiff should be reduced by the amount of damages, if any, which defendant sustained, as shown by the evidence, by reason of plaintiff's failure to use customary materials and fixtures in constructing the houses, if the jury should find that there was a failure to use customary materials and fixtures."
The contract the plaintiff contends was entered into by the parties contains no requirements as to the type of materials to be used; therefore, if the jury found the contract to be as contended by the plaintiff there was no issue as to the type of materials used in the construction of the houses, and the above instructions were not appropriate.
While it is true that the defendant pleaded a recoupment, the basis of which was that the contract contained a provision as to the type materials to be used in the construction of the houses and that the plaintiff had not complied with the contract in this particular, and that as a result of this failure on the part of the plaintiff he had been damaged, a careful review of the record reveals that there was no evidence introduced that the above provision was agreed on by the parties. The allegation of the answer not being supported by evidence it presented no question for the jury's determination.
4. The general grounds of the motion for new trial, not being argued or insisted on in the plaintiff in error's brief, are treated as abandoned.
Judgment reversed. Felton, C. J., and Nichols, J., concur.