4 Ga. App. 763 | Ga. Ct. App. | 1908
After more than one examination and consideration of the numerous points raised by the brief and suggested by the record, though several times confused by the multiplicity of questions and the mass of the testimony, we are prepared to adhere to the conclusion we first reached when this case was argued. We have been deliberate because of our respect for the great ability of the counsel for the plaintiff in error, and the zeal and earnestness with which their positions were maintained. The more familiar, however, we have become with the record, the more we have become satisfied that no sufficient reason has been shown for reversing the judgment of the lower court in refusing a new trial. Stripping the case of those contentions which plainly could not have been material, and confining our view to those points where the difference between the parties is radical, the questions to be determined are extremely simple. In the first place, it becomes necessary to determine the nature of the action. It- is plainly a suit for the breach of a contract. The contract between the parties is set forth in full, and its breach is made the basis of the plaintiff’s petition. If the contract was broken in any respect, the plaintiff had a cause of action against the defendant company, and, under the terms of the contract, the measure of damages would be whatever amount it would cost the plaintiff to put her property, or at least the north wall of her building, in the same condition in which it was at the time the contract was entered into. This much being certain, it became, after the intro
It is a well-settled and salutary rule of construction which requires not only that every contract shall be construed in pari materia, but that no portion shall be discarded if it can be avoided; ut res magis valeat quam pereat. In the first clause of the contract it will be observed that the Candler Investment Company proposed to put a wall under the wall already built by Mrs. Cox. In view of the well-settled opinion that a continuous wall is preferable, for the purpose of bearing a great strain, to disconnected piers (a view which seems to be overwhelmingly supported by testimony in the present ease), it is hardly to be supposed that Mrs. Cox, in accepting the proposition of the Candler Investment Company to put a sufficient wall under her building, would volunteer the less desirable and more unequal support furnished by piers. This, no doubt, would have been the common-sense view of the situation if the court had submitted the contract to the jury for construction; but applying the legal maxim of construction, to which we have just adverted, which requires that one part of a contract shall be illustrated by the other portion, to preserve the whole, we have no difficulty in reaching the conclusion that as a wall had been proposed in the first clause of the contract, it must naturally be supplied, as qualifying the word “foundation,” in the second clause of the contract. In fact, to make legal sense, the word “wall” must be implied to follow, in the contemplation of the parties, the word “foundation,” in the second clause of the contract, as fully as if it had been expressed. The wall proposed in the first clause of the contract was a foundation wall. It was to go down to whatever depth was necessary to support the Cox wall in an unchanged and uninjur.ed position. No matter how constructed, it was to begin at the point on the surface of the earth where excavation ceased, and extend upward under
The rulings of the trial judge upon the demurrers, and as to the admission of testimony, are free from any material error, and the law of the case was fully and fairly presented. There was, therefore, no error in refusing a new trial upon the motion of the plaintiff in error. The contract which the plaintiff in error had entered into was so broad and sweeping in its nature that the express terms.of the contract estopped it from asserting several of the propositions which it attempted to have presented to the jury, and by which ordinarily it might have protected itself from a recovery or diminished the amount. We will give one. example. In the sixth ground of the amendment to the motion for new trial, the plaintiff in error excepts to the refusal of the court to instruct the jury that Mrs. Cox could not, in this action, recover for damage caused by excavations on the land of the Candler Investment Company, and not on Mrs. Cox’s land. The’principle invoked by the written request is sound law, as a general rule, and, but for the terms of the contract in evidence, it would have been error to refuse the request presented; but in this case the plaintiff in error, by express contract, has obligated itself *(as will be seen from the contract) to vary the usual rule and “save party of second part harmless from any loss of any character whatever that may arise from anything done by party of first part, its agents, employees, or contractors in connection with the aforesaid work, or the erection of said building in general!’ In this state of the evidence we think the trial judge very properly refused the instruction -contained in the request, which, but for the stipulations of the undisputed contract, he would doubtless have given. By the terms of its contract, the plaintiff in error, waiving its rights as.a coterminous landowner, insured the defendant in error. It became an insurer against any injury to Mrs. Cox’s wall, and guaranteed to prevent any injury to her wall which would damage her property or injure and damage her tenants.
The affirmance of the judgment of the city court of Atlanta overruling the motion for new trial renders any consideration of the cross-bill unnecessary, and it is accordingly “dismissed.
Judgment, on the main bill of exceptions, affirmed; cross-bill dismissed.