Opinion
37712.
DECIDED SEPTEMBER 9, 1959. REHEARING DENIED SEPTEMBER 30, 1959.
Quantum meruit, etc. Fulton Civil Court. Before Judge Camp. March 13, 1959.
Casper Rich, Noah J. Stone, for plaintiff in error.
Smith, Kilpatrick, Cody, Rogers McClatchey, George B. Haley, Jr., contra.
Where a count of the petition sets forth a valid right of recovery in any amount it is not subject to general demurrer.
DECIDED SEPTEMBER 9, 1959 — REHEARING DENIED SEPTEMBER 30, 1959.
K. L. Finn filed suit in the Civil Court of Fulton County against Wade H. Carden. The first count in addition to jurisdictional facts alleged: the defendant, Carden, employed Finn to construct a house for him; William G. Bursnall, employed on full time basis by the same company as the defendant was to act as architect; at the beginning of the construction, the defendant and the architect, instructed the plaintiff to do whatever Mrs. Wade H. Carden desired to be done in the construction of the house, and make such changes or additions as she should direct, and in the progress of the construction she did supervise the construction of the house, authorizing additions, alterations, and changes to be made; the plaintiff completed the house and the defendant has occupied the same since November 21, 1956; the defendant himself and through his wife and architect authorized additions in the sum of $757.21 for which the plaintiff paid; the defendant had advanced $30,955.98 leaving a balance of the original costs of the house in the amount of $2,757.02; the defendant is indebted to the plaintiff for the extras authorized, and work completed which has not been paid in various amounts. Paragraph 11 of the first count contained a list of various additions and alterations alleged to have been made at the direction of the defendant and his wife, aggregating $1,036.35. The petition further alleged that paragraph 15 of the contract (evidently referring to the construction contract between the plaintiff and the defendant) provided for changes in addition to those called for in the contract, and that the contractor was to receive payment and one of the methods is by cost and fixed fee and the petition alleged and had set out therein that the additional work performed was $1,036.35 and 20% was a reasonable work fee for the work, or a total of $206.27, and in addition he was entitled to receive 20% of $757.21 for extras authorized, and paid for by the plaintiff which is $151.44.
The second count set out the fact of the plaintiff's employment to build the house; the agreement to build the house was dated August 6, 1956, contained reference to specifications and the defendant was to have prepared the plans for the house; the contract was signed in duplicate and each party obtained a copy of the same; William G. Bursnall, chosen to act as architect, and the defendant were employed full time in the same business; the price for building the house was $33,713.00 plus any additions or changes; immediately upon beginning the construction the defendant and Bursnall instructed the plaintiff to do whatever Mrs. Wade H. Carden desired to be done in the construction of the house and make any changes and additions that she desired; during the construction of the house Mrs. Carden made changes in the floor plans, walls, painting, color of paint to be used, color of bathroom fixtures and generally supervised the construction of the house; in the construction of the house, not only Mrs. Carden, but the defendant and architect would stop the work until they could have a conference about materials to be used, and changes to be made; in the construction of the house the defendant, his wife, and the architect disregarded the plans and specifications and ordered changes made as the work progressed; the plaintiff finished the house and paid for the materials; the defendant and his wife ordered $757.21 additions for which the defendant paid; the defendant had occupied the house since November 21, 1956; the defendant has paid $30,955.98 on the price of the house leaving a balance of $2,757.02; the defendant was indebted for extras and changes as alleged in paragraph 11 of count 1; after the defendant occupied the house, he, his wife, or someone for him, without the plaintiff's permission, sandpapered the windows and cabinets so as to remove paint stains and varnish and demanded that the plaintiff repaint the house on the outside; the architect unreasonably and arbitrarily refused to certify the completion of the house, unless the plaintiff would at his own expense do additional work on the same not called for by the contract. There were other allegations alleging that the defendant filed an injunction suit to prevent the plaintiff from collecting the sums due him for building the house and making the changes and additions to the same; that the suit had been dismissed; the defendant had in failing to pay for the house and in instituting the injunction action acted in bad faith and been stubbornly litigious and caused the plaintiff unnecessary expense, damaging the plaintiff in the sum of $2,500. The prayers sued for the same amount as was alleged in count 1 to be due and for the $2,500 referred to in the preceding sentence.
The defendant demurred to each count on the ground that it undertook to set up a suit on a contract and that the contract should be attached to the same as an exhibit. The trial court sustained the demurrers and ordered that a copy of the contract be attached to the petition. The plaintiff complied with the court's judgment and attached a copy of the contract to the petition. However, as was his right under Code § 81-105 he excepted to the judgment. When the contract became a part of both count 1 and count 2, the defendant moved to dismiss each of them on the ground that it set forth no cause of action. The trial judge sustained the motion and dismissed the petition. To this judgment the plaintiff excepted.
Count 1 of the petition, before it was amended, set forth a right of the plaintiff to recover the contract price of building the defendant's house on the basis of quantum meruit. Since the count did not, in the form it was brought in, undertake to set out a suit on the contract, it was not necessary that a copy be incorporated therein or attached thereto as an exhibit. Ittner Bros. v. Farmers' State Bank, 15 Ga. App. 235, 82 S.E. 909, holds: "A petition as upon an open account, with a copy of the alleged account attached, one item of which is, `To contract price of bank building,' is not subject to demurrer on the ground that `there is not set forth in the petition, nor attached thereto, a copy of the contract referred to in exhibit A (the account), nor are the terms and stipulations of said contract substantially set forth in the petition.' The words `contract price' do not necessarily imply a written contract; and even if they do, the suit was properly brought, for the contract is not declared on, does not constitute the cause of action, and there is no prayer for relief based thereon." Other authorities supporting the view pronounced are: Cooney v. Foote, 15 Ga. App. 455, 457 ( 83 S.E. 896); Heyward v. Ramsey, 35 Ga. App. 472, 473 ( 134 S.E. 119); Burch v. Harrell, Cadwell Co., 93 Ga. 719 ( 20 S.E. 212).
Count 1 also alleged a valid cause for the price of the changes and additions. The right of recovery is not affected by the clause of the contract which stipulated that except for minor changes in the work not involving extra cost, no extra work or change in the original contract or specifications should be made unless in pursuance of a written order from the owner signed or countersigned by the architect, or a written order from the architect stating that the owner has authorized the extra work change, and no claim for an addition to the contract sum shall be valid unless so ordered. This is true because it was alleged that the changes and additions were not made in accordance with the contract, but the plaintiff and his wife directed them to be made; that the wife was given authority to direct the work, and the changes and additions when complete, were accepted by the defendant.
An averment of the count shows: "That in paragraph 15 of the contract it provides for changes in addition to those called for in the contract, the contractor was to receive payment and one of the methods is by cost and a fixed fee and the petitioner alleges and has set out herein that the additional work performed is $1,036.35 and that 20% is a reasonable fee for this work, or a total of $207.27, and in addition he is entitled to receive 20% of $757.21 extras authorized performed and paid for by the plaintiff which is $151.44."
The plaintiff's right to recover the price of the changes and additions, though they were not made under the terms of the contract, according to the averments of the count were based, at least in part, on the contract. Hence, the trial judge did not err in requiring the contract which was not incorporated in the petition to be attached thereto as an exhibit. A right of action is to some extent predicated on a contract when the amount of the recovery sought is to be arrived at by a method which the pleader asserts is provided by the contract.
When a copy of the contract was attached to the petition it revealed that a condition precedent to the plaintiff suing for the contract price of building the house was his compliance with the provisions of the contract, that the architect approve the plaintiff's work as fully completed, or that the question of the building's completion had been determined by arbitration. There being no allegation of the count that the work was approved by the architect or that the question had been determined by arbitration instituted for the purpose, the first count as amended disclosed that the present suit for the contract price of the house was premature. In Southern Mfg. Co. v. R. L. Moss Mfg. Co., 13 Ga. App. 847, 856 ( 81 S.E. 263) it is stated: "We conclude, therefore, that a stipulation in a building contract to the effect that the compensation of the builder shall be due and payable only on the certificate of a named engineer is a condition precedent, and that an allegation of compliance with this condition is essential to the maintenance of an action brought to recover the unpaid balance of the compensation provided for in the contract, and to enforce collection by foreclosure of the materialman's lien. And though this stipulation may be waived (as any provision of any contract may be waived), still the failure or refusal of the umpire, chosen by the parties, to give a certificate does not in such a case entitle the builder to sue upon the contract; and certainly if the engineer named in the contract as arbiter (and whose decision as to the completion of the contract is to be final) has given a certificate stating that the contract has not been completed or complied with, a recovery can not be had under the contract; and a suit upon a quantum meruit, to recover the value of the services and material furnished, would be the plaintiff's appropriate remedy."
That rule is also recognized in Henderson v. Cochran, 213 Ga. 642 ( 100 S.E.2d 910); State Highway Dept. v. MacDougald Const. Co., 189 Ga. 490, 498 ( 6 S.E.2d 570, 137 A.L.R. 520).
We have not overlooked the contention that the defendant owner waived the condition of the contract requiring the certified approval of the architect, and the submission of any disagreement of the parties as to whether the house had been built in compliance with the construction contract to arbitration, because the building when completed was accepted by the defendant. Acceptance of a completed building after the time for its completion has expired does not waive the owner's right to a reduction in the purchase price ( Cannon v. Hunt, 116 Ga. 542 (5), 42 S.E. 734), and the law is equally as clear that an owner can not accept a completed job of construction and refuse to pay any part due on the building price. Bandy Bros. v. Norton Frierson's Sons, 138 Ga. 515, 516 (6), 520 ( 75 S.E. 626); Harden v. Lang, 110 Ga. 392 ( 36 S.E. 100).
It is apparent from the allegations of count 1 that a greater part of the building price had been paid, hence, the defendant could move into the house and still contend it was not built as required by the construction contract. However, when the contract was attached as an exhibit to the petition, the amendment did not change or alter the plaintiff's right to recover for the changes and additions. Even with the contract attached the count alleges a right of recovery for changes and additions not made under its terms, and nothing in the contract is contrary to the cause set forth.
Where the allegations of a count show the plaintiff's right to recover in some amount the count is not subject to general demurrer. Green v. Ford, 72 Ga. App. 681 (2) ( 34 S.E.2d 913).
The rulings as to the judgment of the trial court requiring a copy of the contract attached as an exhibit to the count, that the count set forth no right of recovery for the contract price of the house because the action was prematurely instituted, but did set forth a valid right of recovery for the changes and additions referred to in paragraph 11 of the count are applicable to count 2. Hence, a general demurrer ought not to have been sustained to count 2.
Affirmed in part, and reversed in part. Felton, C. J., and Nichols, J., concur.