113 Ga. 501 | Ga. | 1901
This case seems to have been tried under a misapprehension of the rules of law which govern the issues raised by the pleadings and evidence. Mrs. Hunt, administratrix, instituted her action against Mrs. Cannon, to recover what she alleged was due to
In the case of Glacius v. Black, 50 N. Y. 145, it was ruled, that when by the terms of a contract for repairing a building it was provided that the material furnished should be of the best quality, and the work performed in the best manner, subject to the acceptance •or rejection of the architect, and all to be in strict-accordance with the plans and specifications, and to be paid for “ when done completely and accepted,” the acceptance .by the architect did not relieve the •contractors from their agreement to perform the work according to the plans and specifications; nor did his acceptance of a different ■class of work or inferior materials from those contracted for bind the owner to pay for them; that the provision for acceptance was merely an additional safeguard against defects not discernible by an unskilled person. It has also been ruled, in a number of cases, that one superintending the erection of a building has no authority to make any change in the original contract. See Woodruff v. Rochester & P. R. Co., 108 N. Y. 39; Baltimore Cemetery Co. v. Coburn, 7 Md. 202. Mr. Wait in his work on Engineering & Architectural Jurisprudence, § 371, in defining the powers of an engineer connected with the supervision of the work, says: “The engineer
It was on this, and similar evidence from .other witnesses, that the judge predicated the charge complained of. In thus instructing the jury the trial judge doubtless had in view the principle of law which renders delay in the observance of the terms of a contract, from providential cause, a defense to an action brought for its breach; but it is our opinion that the charge given does not correctly state this principle. On the contrary, the. fact that the season was not an ordinary one, that it was very rainy, and that on that account the building was not completed within the time specified, can not successfully be urged as a reason excusing the delay. Constant, unusual, or heavy rains can not of themselves be classed as a providential hindrance. Even if the cause which delayed the completion of the building could be denominated a providential cause, it would not afford a legal excuse for the delay, if it be shown that the period of time between the making of the contract and the happening of the cause was sufficient within which the building could have been completed. By the Civil Code, § 3725, which refers to the performance of a contract, it is declared: “ If such performance is impossible, and becomes so by, act of God, such impossibility is itself a defense equivalent to performance; but if, by proper prudence, such impossibility might have been avoided by the promisor, it ceases to be an excuse for non-performance.” In the case of Fish v. Chapman, 2 Ga. 349, Judge Nisbet quotes approvingly the definition by Judge Story and Chancellor Kent as to
We have thus referred to cases containing definitions of “acts of God,” and establishing the rule when such causes may be said to' excuse the performance of the terms of a contract, for the purpose
Judgment reversed.