116 Ga. 452 | Ga. | 1902
The nature of this case is disclosed by the report made of it when it was here at the March term, 1901. See 113 •Ga. 501. The jury having returned another verdict against Mrs. ■Cannon, the owner of the building which Hunt, the plaintiff’s intestate, had undertaken to erect according to certain plans and •specifications, she made' a motion for a new trial, which was ■overruled, and she excepted. As the case must undergo still another investigation in the court below, we shall endeavor to dispose -of all questions now presented which are likely to influence the .result of the next hearing.
1. At the last trial, Mrs. Cannon appears to have strenuously pressed her contention that “ by reason of the imperfect condition ■of the roof, and the rain leaking through the same,” goods and merchandise which she had placed in the building had been damaged to the amount of three hundred dollars, and that it would cost a like amount to put the roof in the condition called for by the contract, which embraced the following stipulation: “All tin used tó be N. & G. Taylor Company’s old style redipped tin best quality, roof to have standing seams not less than three fourths, the .sheets of tin to be laid the narrow -way with locked and soldered joints well nailed in place by metal cleats and barbed nails.” One ■of the issues which arose was, whether or not, in view of this stipulation, it was the duty of the contractor to not only lock but also solder all cross-seams, and the trial judge allowed the plaintiff to introduce the testimony of experts to the effect that cross-seams were not usually soldered, and were not to be confounded with “ locked and soldered joints,” soldered joints being used only in fittings “around chimneys and scuttle-holes,” and in making connections “ onto valleys where they run diagonally along.” We have no hesitation in saying this testimony was properly admitted under the rule that parol evidence is competent to explain the meaning of technical terms employed in contracts which have been reduced to writing. It was insisted by Mrs. Cannon that even if the ■above-quoted stipulation did not impose upon the contractor the express obligation of soldering all cross-seams, he should neverthe
On the other hand, where plans and specifications do not prescribe a particular kind of material to be used for a given purpose and in a specified way, but in general terms impose upon the contractor the obligation of bringing about given results, he is under the duty of selecting the proper and usual materials and deciding for himself the precise manner in which they shall be used in order to comply with his contract to produce a workmanlike job. The trial judge, in charging upon another feature of the controversy, appears to have overlooked the distinction just indicated between specific directions and mere “general orders.” ■ It appears-that the plans called for a certain tower, of a given radius, to be built of brick, but neither the shape nor size of the brick was specified. In point of fact ordinary brick was used, and the defendant’ contended that brick of a given size and shape, specially adapted.
2. When the case made its former appearance before us, we ruled explicitly that inclement weather such as is frequently experienced in this climate is not to be regarded as “the act of God” in the sense in which that phrase is to be judicially understood in determining whether a party to a contract such as that under consideration should be excused for non-compliance therewith simply because he was prevented from performing his obligations in the premises by “rains and freezes” which were natural and to be expected. In view of this express ruling and of the evidence introduced on the trial now under review, the presiding judge erred in submitting to the jury the question whether or not the plaintiff had supported by proof her contention that her intestate was prevented by “ the act of God ” from sooner completing the building. It was likewise erroneous to charge upon the contention of the plaintiff that the delay in commencing work upon the building was brought about by the failure of the owner of the premises to comply with an undertaking on her part to make needful excavations. "While it does appear that these excavations were not made until some time after the execution of the contract, there was no evi
3. It was expressly stipulated in the contract that the contractor was to use only “ 5/8 inch beaded yellow pine first standard ceiling” and first and second grade “long-leaf yellow pine flooring, not over 3 and 1/4 inches wide.”. He actually furnished a much less expensive and altogether different kind of pine ceiling and flooring. As to this matter the court charged the jury that notwithstanding he may have used lumber of a different kind from that called for by the specifications, yet if the lumber furnished by him was “as good and durable for that specific work, then that would be a substantial compliance with that part of the contract, and no damage on that account should be allowed.” This charge was clearly erroneous, for it was the undoubted right of the owner of the building to recover damages for failure to furnish the kind of material specified, even though that used was in every respect equally as good; and furthermore, the “durability” test applied by the court left entirely out- of view the difference in finish and appearance, if any, between the two kinds of lumber, and other equally important considerations, such as market price, etc. Means v. Subers, 115 Ga. 371.
4. Over the objection of the defendant, the court allowed the plaintiff to show that the reputation of the contractor “for fair and honorable dealings” was good. What relevancy this evidence had to any issue on trial we are wholly at a loss to perceive. On the argument here, counsel for the defendant in error explained that this evidence was offered and admitted on the idea that the character of the contractor was put in issue by proof introduced by the defendant to the effect that he had made a breach of his contract by using material inferior to that he had agreed to furnish. It can make no difference for what purpose the evidence was allowed to come in. The owner contracted for certain material in the construction of the house; the substitution of a different material was a breach of the terms of the contract; the comparative character of the substituted material was admissible as affecting the amount of damage sustained by such breach; but the character of the contractor was not in issue, and the evidence was wholly inadmissible.
Judgment reversed.