162 Ga. App. 852 | Ga. Ct. App. | 1982
Appellant contracted to perform renovation work on some twenty houses owned by appellee. Under the terms of the express contract, appellant was to receive payment “in one lump sum upon the satisfactory completion of the work.” “Satisfactory completion” was itself conditioned upon appellant’s securing the certification of appellee’s inspector and the approval of both appellee and the U. S. Department of Housing and Urban Development. Appellant was unable to complete thirteen of the houses within the original time limitations set forth in the contract. Nor was appellant able to tender the “satisfactory completion” of the thirteen houses within any extensions of time which he had been granted under the provisions of the contract authorizing such extensions. Under the express terms of the contract, appellee was authorized to terminate appellant’s right to proceed with the work in the event that he had failed to complete it within the original time agreed upon or any extensions thereof. Pursuant to this provision of the contract, appellee exercised its option to terminate appellant’s right to proceed with the work, thereby making it impossible for appellant to fulfill the “satisfactory completion” condition precedent to a recovery under the contract.
Appellant instituted the instant action against appellee, ostensibly to recover for breach of contract and to recover for such labor and materials as had been expended in connection with the uncompleted houses. The case came on for trial and, at the close of all the evidence, appellee’s motion for directed verdict was granted. Appellant appeals.
1. “A stipulation in a building contract to the effect that the compensation of the builder shall be due and payable only on the certificate of a named engineer is a condition precedent, and an allegation of compliance with this condition is essential to the maintenance of an action brought to recover the unpaid balance of the compensation provided for in the contract...” Southern Mfg. Co. v. R. L. Moss Mfg. Co., 13 Ga. App. 847 (2) (81 SE 263) (1909). However, “if the completion of the contract was prevented by the party otherwise having the right to insist on the... certificate, this is equivalent to completion of the contract as a remedial element. [Cits.]” Gellis v. B. L. I. Const. Co., 148 Ga. App. 527, 535 (1) (251 SE2d 800) (1978).
Applying the aforesaid legal principles to the undisputed evidence in the instant case, we find that appellant’s nonperformance of the contract, including the satisfaction of the condition precedent
We find no error for any reason urged on appeal in the grant of a directed verdict to appellee insofar as appellant’s asserted right to recover was premised upon the express contract between the parties and appellee’s breach thereof. Southern Mfg. Co., 13 Ga. App. 847, supra.
2. It was, however, error to grant a directed verdict to appellee insofar as a recovery for labor and materials was not premised upon the express contract existing between the parties. As discussed in Division 1 above, appellant’s right to proceed under the contract and his consequent right to recover under the contract was extinguished when appellee exercised its option to terminate upon appellant’s default in his contractual obligations. “Where there has been, in effect, a repudiation of a contract by both parties in that no contract ever existed, the contract ceases to be the criterion for measuring the
Judgment affirmed in part and reversed in part.