135 Ga. 719 | Ga. | 1911
An owner of land employed builders to erect a storehouse. The contract between them was reduced to writing, and by its terms the builders agreed to construct the house for $9,241, of which sum $1,000 was to be paid from the salvage of an old house, which was to be torn down to make place for the new structure. The builders agreed to construct the house according to attached plans and specifications, and to complete the same on or before December 1st, 1907. “If however said building is not completed on or before Dec. 10th, then the said [builders] shall forfeit to the said [employing landowner] the amount of $5.00 per day, which sum shall be deducted from this contract price.” The contract provides that at the end of each month the superintendent of the building shall make an assessment of the amount of the work done and material furnished during the past month, and the owner agrees to pay to the builders the amount of such assessment, less ten per cent.; provided, however, that all of the material and labor shall have been paid for when the assessment is made, .or that said assessment shall be applied in payment of the labor and material up to the time of the assessment. The building was completed, but not within the time limited in the contract. In a suit between the builders and the owner, the latter asserted a claim for damages for failure to complete the house within the contract time, computed at $5 per day; and in the alternative, that, if the sum mentioned in the contract be construed to be a penalty and not recoverable, she should have damages for a reasonable rental for the time intervening between the time the builder contracted to com
The contract of the parties contemplated the construction of a house and was an entire and indivisible,contract. It was none the less an entire contract because of the owner’s engagement to pay for its erection in installments as the work progressed. 3 Page on Contracts, § 1493; Hunnicutt v. Van Hoose, 111 Ga. 518 (36 S. E. 669). The parties incorporated in their contract certain covenants; the dependence or independence of which is to be determined by the sense and meaning of the contract. Ás a general rule, but subject to many exceptions, where a contract requires successive steps to be taken by*the respective parties, the covenants which relate to the taking of these steps are mutual and dependent. Bishop on Contracts, § 827. As was observed by Chancellor Kent in discussing the general nature of a building contract: “A mechanic generally stands in need of advances from time to time, in aiding him to procure materials 'to carry on his work; and the employer, if prudent, will generally reserve a considerable payment until the work be completed and to depend on such completion. But if all these payments can be demanded without performance, merely because a part of them were to be made as the work advanced, it would be making the intention of the- parties subservient to technical rules.” Cunningham v. Morrell, 10 Johns. 203 (6 Am. Dec. 332). It does not follow, in every case of mutual and dependent covenants, that upon a failure of one party to perform his covenant the other party will be exonerated or excused from performing his covenant. Before partial failure of performance of one party will excuse the other from performing his contract or give' him a right of rescission, the act failed to be performed must go to the root of the contract. Lewis v. Chis
Judgment reversed.