Freeman v. Campbell

22 Ga. 184 | Ga. | 1857

By the Court.

Benning, J.

delivering the opinion.

Is it the meaning of the contract, that Campbell was to do the work as one job, for one sum, or as five jobs, for five sums ? That he was to build the house and furnish the materials, (masonry materials excepted,) as one job, for $2,650, or that he was to frame and raise the house as one job, for $500; to enclose and roof the house as a second job, for $500; to lay the floors and set the partitions as a third job, for $500; to put up the ceiling and do the remainder of the carpenter’s work, as a fourth job, for $500; to paint the house and deliver the keys to the Lodge, as a fifth job, for $650, payable on a credit ?

If the meaning of the contract is, that Campbell was to do the work as one job, for one sum, then, although he left the work in an incomplete state, still, the Lodge was bound to pay him .for it whatever it was worth, estimated at the contract rate of value ; because the Lodge accepted the work in its incomplete state. If therefore, the work was in a state of half-completion, the Lodge was bound to pay him $1,325, if .in a state of three-fourths completion, the Lodge was bound to pay him $1,987 50. In a word, the sum which the Lodge was bound to pay him, bore the same relation to $2,650, that the house in its incomplete state would have borne to the house in its complete state, if the house had ever been advanced to a complete state.

If the meaning of the contract was, that Campbell was to &o the work as five jobs — the five aforesaid — and if some of these jobs were completed by Campbell, before he quit the work, and others not, then, the lodge was bound to pay him for the completed jobs the full prices agreed on for them, and. to pay him for the others, such sums as bore to their respective prices the same relation which the respective jobs, in their incomplete state, would have borne to the same jobs, respectively, in their complete state, if they had been advanced to a state of completion.

On the first hypothesis, the proper question for Court and jury would be: what was the contract value of the work in its incomplete state. That is, it would be this: if the work in a state of completeness would have been worth $2,650, what was it worth in its state of incompleteness ?

And any evidence going to show, that if the work, in a state of completeness, would have been worth $2,650, the work in its state of incompleteness Avas Avorth so much, or so much, Avould have been admissible.

And, as it is to be presumed, prima facie, that the contract was a fair contract, it is to be presumed, prima facie, that $2,650, the contract value of the work, was the real value of the work. Therefore, any evidence going to show the real value of the werk in its incomplete state, would have been prima facie evidence, going to show the contract value of the work; and, consequently, would have been proper evidence to be admitted.

Now, the Court below, it seems, thought, that it is the second of the two hypotheses that is the true one; but this Court thinks that it .is the first

This Court thinks that the meaning of the contract is, that Campbell was to do the work as a single job, for the sum of $2,650, payable in installments.

The contract is headed thus: “ Specification for the labor and materials to erect the Masonic Female Institute, at Green-ville Georgia.”

Then follow specifications under these titles: “ Dimensions,” “Frame,” “Weatherboarding,” “Cornice,” “Roofing,” “ Windows,” “ Doors,” “ Furniture,” “ Trimmings,” “ Rooms,” “ Partitions,” “ Ceiling,” “ Balcony,” “ Conditions,” “ Stairs and outside Steps,” “ Tinner’s Work,” “ Painting,” “ Mason’s Work,” “ Base or Wash-board.”

The specification under the title “Conditions,” is in these words: “ The whole of the materials, (except Mason’s materials,) to be furnished by the builder, and the work to be done in a workmanlike and substantial manner, for the sum of twenty-six hundred and fifty dollars, the payments to be made in the following manner: when the building shall be framed and raised, then the sum of five hundred dollars shall be paid; when the house shall be enclosed and the roof put. on, then the second sum of five hundred dollars shall be paid ;- when the floors shall be laid and the partitions set, then the third sum of five hundred dollars shall be paid ; when the ceiling is put up and all the carpenter’s work shall be done, the fourth sum of five hundred dollars shall be paid ; when the painting shall be done and the keys delivered, then the obligation of the undersigned for the payment of six hundred and fifty dollars on the first day of January next, shall be given ; the whole of the work to be under the supervision of a superintendent, to be appointed by the Building Committee, who shall give the orders for the money when due.”

Now, much of all this seems to be entirely inconsistent with the work’s being a work in five jobs, each job with its separate price; whilst none of it is inconsistent with the work’s being a single job, at a single price. True, the price is to be paid in five sums, but the reason for that might well be, that the price fell due in five installments. It certainly is not said of any one of the sums, that such sum is to be the measure of the value of the part of the work on the completion of which the sum was to be paid. Nor are the specifications headed as specifications for the parts of a house, distributed into certain parts; nor are they in themselves, suitable for the parts of a house, distributed into any parts. Indeed, the house is not distributed into five parts, or into any number of parts. The specifications are headed as specifications for a house, as a whole; and they are suited to a house as a whole.

We think, therefore, that it was the meaning of the contract, that Campbell was to do the work as a single job, at the price of $2,650. Therefore, as has been above stated, the proper inquiry for the Court and jury was, what was the contract-value of the work, in its incomplete state; and, on that inquiry, as contract-value, and real value may be, prima facie, taken to be the same, any evidence going to show the real value of the work, in its incomplete state, was admissible. That value being ascertained, the question whether the Lodge as garnishee, owed Campbell any thing, was to be determined by comparing the value thus ascertained, with the amount of the payments made by the Lodge to Campbell.

This being so', we think, that the Court below erred in not allowing the plaintiff to prove what was the value of the work done by Campbell in its incomplete state; and in not charging the jury, that if the value of the work in its incomplete state, the value estimated by the contract rate of value, exceeded the payments, the Lodge was still indebted to Campbell for the excess;

Therefore a new trial is ordered.

Judgment reversed.