130 Ga. 701 | Ga. | 1908
These two cases were tried together in the court below, and argued together in this court. The rulings upon the questions raised in the cross-bill of exceptions, by assignments of error upon the court’s refusal to dismiss the motion for a new trial, and our decision upon the controlling question raised by an. assignment of error in the main bill in each case, dispose of both cases, and separate decisions are unnecessary.
Counsel for defendant in error rely upon the case of Fuller Co. v. Doyle, 87 Fed. 687, and the case of Adams v. Haigler, 123 Ga. 659 (51 S. E. 638), but the case of Fuller Co. v. Doyle is distinguished, in the case of the American Bonding & Trust Co. v. Gibson County, 127 Fed. Rep. 673, from a case involving a question like that under consideration; and the allegations of the plaintiff’s petition in the case of Adams v. Haigler, supra, were materially different from those in the instant case. The provisions of paragraph 7 of the contract sued on in the Adams case were similar-to those of article 5 of the contract in the present case, and the last sentence- of that paragraph was as follows : “The'expense incurred by the owner as herein provided, either for furnishing materials or furnishing the work, or both, and any damage incurred through such default, shall be audited and certified by the architect, whose certificate thereof shall be conclusive upon the parties hereto.” And it was said, in the opinion in the Adams case, that “The condition of affairs contemplated by the 7th para-' graph of the petition does not seem to have arisen, that is, where the plaintiff would be compelled to secure the services of some one not connected with the original contract to complete the work. If the allegations of the petition were that both Frey and Haigler had entirely abandoned the contract and failed to perform its conditions, and that the plaintiff had made - a new and independent agreement with Haigler to complete the work without reference to the old contract, an entirely different question would have been raised; and it is probable that the right of plaintiff to recover would have been dependent upon his compliance, either literally or in substance, with the stipulations of paragraph 7.”
The decisions which we have quoted and cited above are strong and convincing. They leave nothing to be said further touching the questions with which they deal. An elaboration of the reasoning and argument in those.cases would be superfluous. Without taking a course directly against this strong current of authority, we can not do otherwise than hold that the defendants’ general demurrer to the petition should have been sustained, because the pe
The court below having erroneously refused to sustain the general demurrer to the declaration, all that took place subsequently on the trial was nugatory; and it is unnecessary to pass upon assignments of error on rulings of the court in the subsequent stages of the case.
On both of the main bills of exceptions the judgments a/re reversed. On both cross-bills the judgments are affirmed.