19 Ga. App. 518 | Ga. Ct. App. | 1917
1. There is no substantial merit in the motion to dismiss the bill of exceptions, and it is accordingly denied.
2. In an indivisible contract “the entire fulfillment of the promise by either, in the absence of any agreement to the contrary, or waiver, is a condition precedent to the fulfillment of any part of the promise by the other.” “In determining whether the contract is entire or severable the criterion is to be found in the question whether the whole quantity,
3. Where a contract is entire the whole contract stands or falls together. Civil Code of 1910, § 4228.
4. Where.the plaintiff'has performed a part only of an indivisible contract, and the defendant has accepted this part performance, the plaintiff can recover upon a quantum meruit, or in assumpsit, but he can not recover upon the contract itself. Southern Ry. Co. v. Branch, 9 Ga. App. 310 (71 S. E. 696).
5. Where the plaintiff bases his right to recover upon an express contract, which is entire and indivisible, he can not recover unless he has performed all his obligations under the contract. Hill v. Balkcom, 79 Ga. 444 (5 S. E. 200); Parker v. Parlinger, 122 Ga. 315 (50 S. E. 98); Bennett v. Burkhalter, 128 Ga. 154 (57 S. E. 231) ; Broxton v. Nelson, supra.
6. The contract which is the basis of the action in the case at bar was an entire contract, and the defendants could plead that the plaintiff had breached the contract in certain particulars, setting them forth, and it was not incumbent upon them to allege the amount that they had been damaged by reason of such breaches.
7. The court erred in striking the defendants’ plea, and the subsequent proceedings in the case were nugatory.
Judgment reversed.