151 Ga. 281 | Ga. | 1921
Lead Opinion
(After stating the foregoing facts.) Brown-Bandolph Company owned a city lot on the southwest corner of Marietta and
In the view we take of this case, regardless of whether a court of equity or a court of law has jurisdiction, the controlling question is whether the petition sets out a cause of action against the defendant. It will be observed that the letter written by Gude & Company to A. Ten Eyck Brown was not addressed to the plaintiff in this case, and it nowhere expressly appears -that A. Ten Eyck
A building contract, to be valid, mu-st have the necessary element of certainty, the same as other contracts. Such a contract may be made sufficiently certain by reference to other documents, or to plans and specifications. But such reference must be sufficient to identify the documents or plans referred to. 4 Elliott on Contracts, § 3637, and cases cited; 6 R. C. L. 867, § 253. In Cruthers v. Donahue, 85 Conn. 629 (84 Atl. 322, Ann. Cas. 1913C, 221, 226, note), it was held: “Where there is a conflict between a building contract and the specifications, the former prevails.” In Willamette Steam Mills Co. v. Los Angeles College Co., 94 Cal. 229 (29 Pac. 629), it was held: “ Code Civil Proc. see. 1183, provides, inter alia, that where the amount to be paid for any building exceeds $1000.00 the contract shall be in writing, signed by the parties, and ‘ shall, before the work is commenced, be filed in the office of the county recorder.’ Held: That where a contract provided for the erection of a building ‘ conformable to drawings and specifieations . . hereto annexed,’ but the drawings and specifications were not filed with the contract, the contract was void, and cannot serve as a basis in determining the rights of those claiming mechanics ’ liens on the building.” See also division 2 of the opinion. In Donnelly v. Adams, 115 Cal. 129 (46 Pac. 916), it was. held:
The contract of July 30 does not refer specifically to the letter and estimate of June 28, and, as previously stated, the contract is unambiguous. Consequently it cannot be varied by parol evidence, so as to include in it the estimate of June 28. Standing alone, the contract provides a complete working basis for the cost of the building, which is cost plus ten per cent, commission. Besides, it will be observed that the language of section 3 of the contract provides that the estimates of the contractors made in writing from "completed drawings and specifications and full information will be correct,” etc., thus showing that the completed drawings and specifications contemplated did not refer to the past, but to the future; and that language also applies with equal force with reference to the "estimate,” not that which had been made, but that which was to be made in the future. If completed plans and estimates had already been made, in all probability they would have been attached to the contract, or would have been referred to by express and definite reference.
As to the second contract for the two additional stories, it is insisted by the plaintiff that the petition alleges that the defendants fraudulently incorporated in the estimate of cost that they submitted to the plaintiff two items which were covered by the original contract, and that the plaintiff discovered this fact after the institution of the present litigation; also that the petition alleges that the two officers of the plaintiff were attorneys, neither of whom was familiar with the construction of buildings, and they did not know, at the time the contract for the additional two stories was entered into, that the defendants had fraudulently padded the second estimate with these two. items amounting to nearly $40,000; and that these allegations are to be taken as true on demurrer, and if this is done the plaintiffs are entitled to have the second contract reformed and these two items stricken. It is true that fraud upon one side and mistake upon the other in the execution of a contract
From what has been said and the authorities cited, we reach the conclusion that the petition does not allege facts sufficient for a recovery against Gude & Company, on the basis of $375,000 guaranteed cost of the first eight stories of the building, as insisted by
Judgment affirmed.
Concurrence Opinion
concurring specially. I concur specially in the judgment, on the ground that the allegations of the petition do not entitle the plaintiff to the equitable relief prayed.