123 Ga. 659 | Ga. | 1905
1. The amendment should have been allowed. It was germane to the petition, and did not set forth a new- cause of action. See City of Columbus v. Anglin, 120 Ga. 785. One of the distinct terms in the contract was that Haigler and Frey were to find all material, labor, etc., necessary for the full completion of the building as set forth in the specifications. The. condition of the bond was that they should well and truly comply with all the terms and conditions of the contract. The petition alleged that they utterly failed to find material, labor, etc., which was necessary to complete the building, and that as a consequence the plaintiff was damaged in a stated amount, being the sum which he was-required to pay out in excess of the contract price; and the-amendment which was rejected alleges that this sum was necessarily expended for this purpose, and that the labor and materials, were secured at the lowest possible cost, a bill of particulars to-the petition setting forth each item that was thus procured'.. These allegations in the original petition and the amendment seem to set forth a complete cause of action upon the bond, and if there were no other allegations in the petition, the plaintiff would be entitled to recover upon proof of the averments.
2. But it is said that under the 7th paragraph of the contract, the plaintiff had no right to take charge of the work except in the manner therein specified, that is, that it was necessary to give the contractors five days notice to continue the work, and, upon their failure, to obtain the consent of the architect to take charge of the
3. The contract provided that the house should be completed on a given day. It was distinctly alleged that the house was not completed on this day, and there were allegations showing the damage which resulted from this failure. The failure to complete the contract on the day named was a breach of the bond. But it is said that thé plaintiff is not entitled to recover this damage, for the reason that paragraph 8 of the contract requires the damage to be determined by arbitration, and there could be ,no recovery of such damage until there had been an arbitration in the manner provided. It is unquestionably true that parties may stipulate in a contract that the amount of damage in case of a breach shall be fixed, by arbitration. But such a stipulation would not bar a party damaged by the breach from recovering the damages by suit, even though there were no arbitration, unless the provision for arbitration amounted to a condition precedent to the right to resort' to the courts, or arbitration was made the only mode by which the amount of damages should be ascertained, Liverpool
4. It is also said that the petition should have alleged that the delay was not due to alterations. and additions being made as provided by the contract; but we think this is matter of defense and should be made the subject of a plea. The petition was sufficient to call for an answer from both of the principals and from the surety.
Judgment reversed.