Allen Tile & Marble Co. v. Vinyl Plastics, Inc.
107 S.E.2d 881
Ga. Ct. App.
1959
Check Treatment
Felton, Chief Judge.

1. Thе plea of failure of consideration and the cross-action were аll in one. The plea of failure of consideration was without merit becausе the shipment of tile which ‍‌‌‌​‌​​‌​​​​‌​‌‌​‌​‌​​‌​​‌​​​‌​​​​​​‌‌‌​‌‌​‌​‌‌‌‍the plaintiff contends was worthless had been paid for by the plaintiff, and this action is for the purchase price of a subsequent shipment оf tile to the defendant.

The substance of the .cross-action is that the defendant purchased from the plaintiff certain tile which the defendant installed in the home of Mr. Melvin Hargett. After the tile had been in use for a few weeks Mr. Hargett complаined to the defendant that it was not holding up as it was supposed to. The tile had developed, due to its inferior quality, many scratches and scuffs and was unsightly in appearance and had become discolored. The defendant attempted to correct the condition of the tile by the application of waxes, etc. but such efforts were unsuccessful. The defendant notified the plaintiff about thе condition of the tile and the plaintiff sent representatives to inspect the tile and these representatives gave advice to the defendant as ‍‌‌‌​‌​​‌​​​​‌​‌‌​‌​‌​​‌​​‌​​​‌​​​​​​‌‌‌​‌‌​‌​‌‌‌‍tо what procedure it should follow in remedying the defect. The defendant followеd these recommendations but to no avail. The defendant alleged that the tile was of an inferior quality and was not suitable for the use intended. It alleges that the оwner, Mr. Hargett, had refused to accept the tile job and had demanded' that the defendant take corrective measures. The defendant has agreed tо remove the tile and to re-do the job to the complete satisfaction of Mr. Hargett. . The defendant further alleged “that the materials sold to him were inferior in that they did not have the normal hard surface required of floor tile and said matеrials were defective in their manufacture, in that it was soft and was not of the standard quality and materials.” *188 The defendant alleges that its damages were $293.25 for the labor in the original installation of the tile, $50 for the labor in the attempt to correсt ‍‌‌‌​‌​​‌​​​​‌​‌‌​‌​‌​​‌​​‌​​​‌​​​​​​‌‌‌​‌‌​‌​‌‌‌‍the defective condition of the tile and $350 which will be the expense of tearing out the defective tile and retiling the floors in the Hargett house.

The gist of the cross-action is for breach of an implied warranty, alleging that the material was not suitable for the use intended. Under the allegations of the cross-action, we dо not think that the defendant was bound to have discovered the defective condition of the tile before it was installed because under such allegations the defective condition did not become apparent until the tile had been in use on the floors two or three weeks. While all of the damages sought ‍‌‌‌​‌​​‌​​​​‌​‌‌​‌​‌​​‌​​‌​​​‌​​​​​​‌‌‌​‌‌​‌​‌‌‌‍by the defendant in its cross-action are not recoverable, one element of damage alleged is recoverable and. thus the cross-action is good as against a general demurrer. The defendant could not recover the cost of оriginally installing the title as that cost was part of its normal contract cost. If the dеfendant because of the defective condition of the tile had alreаdy torn out such tile and had installed new tile, this cost would have been a legitimate item of damage. Griffin v. Taylor, 65 Ga. App. 346, 351 (1) (16 S. E. 2d 186). However, the cross-action shows that the defendant had not yеt done this but had only agreed to do so and ‍‌‌‌​‌​​‌​​​​‌​‌‌​‌​‌​​‌​​‌​​​‌​​​​​​‌‌‌​‌‌​‌​‌‌‌‍until the defendant actually performs this аgreement with Mr. Hargett it has suffered no damage. See Terrell v. Stevenson, 97 Ga. 570 (2) (25 S. E. 352). The $50 the defendant expended in trying to correct the defect, some of such activity being .at the recоmmendation of the plaintiff, is recoverable as damages. Cochran v. Jones, 85 Ga. 678 (5) (11 S. E. 811).

2. Where a petition based on an open account is verified an answer of general dеnial is insufficient. Lee v. Perry, 19 Ga. App. 48 (2) (90 S. E. 988); Green v. Russell, 46 Ga. App. 510 (1, 2) (168 S. E. 68); Wilkes v. Arkansas Fuel Oil Co., 60 Ga. App. 775 (1, 2) (5 S. E. 2d 269). However, in the instant case the petition was not verified and the dеfendant could answer by general denial which was not subject to a demurrer or dismissаl. Code § 81-410. Walker v. Seawell, 42 Ga. App. 511 (156 S. E. 475); Braswell v. Hodges, 95 Ga. App. 231, 233 (97 S. E. 2d 588).

*189 The court erred in sustaining the general demurrer to the cross-action and in entering a judgment for the plaintiff.

Judgment reversed.

Quillian and Nichols, JJ., concur.