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Action on contract, etc. Walton Superior Court. Before Judge Cobb.
1. On a suit by an architect for services rendered the defendant owner in the construction of a building under a written contract specifying fees totaling 6 percent of the cost of the work, where the contract is entire and the evidence is undisputed that the architect performed the services expected of him by the owner even though he did not perform all services listed in the contract; and where the defendant failed to establish the defenses of novation, accord and satisfaction, or failure of consideration, a verdict for the plaintiff was properly directed.
2. Demand is unnecessary as a prerequisite to the collection of interest on liquidated demands which are fixed and certain both as to amount and the time at which they fall due. Under a written contract specifying that the balance of the architect's fee is due upon completion of the work, the amount is liquidated at the time the work is completed and its cost becomes fixed. The award of interest from the date prayed for by the plaintiff, which was after the principal cost became a liquidated amount, is without error.
William Chase, after causing an attachment to issue and be levied upon the property of the defendant L. F. Swanson, filed a declaration in attachment in the Superior Court of Walton County seeking a balance due of $8,382.40 plus interest as architect's fee under a contract between the parties. The contract, dated June 3, 1954, provided for professional services of the plaintiff consisting of necessary conferences, preparation of preliminary studies, working drawings, specifications and drawings for architectural, structural, plumbing, heating, electrical and other mechanical work in the construction of a certain factory building; assistance in the drafting of forms of proposals and contracts; issuance of certificates of payment, keeping of accounts and general administration of the business and supervision of the work. Payment was to be 6 percent of the cost of the building, with the provision that until building costs were established periodic payments would be based upon an estimated cost of $2.50 per planned square foot. The contract contained other provisions for payment as work progressed and specified that "from time to time during the execution of work and in proportion to the amount of service rendered by the architect, payments shall be made until the aggregate of all payments made on account of the fee under this article . . . shall be a sum equal to the rate or rates of commission arising from this agreement computed upon the final cost of the work."
The defendant answered alleging that the contract attached to the declaration was never considered a working agreement between the parties but that after the signing thereof it was agreed that no percentage would be paid to the plaintiff for materials purchased by the defendant; that plaintiff would do no supervision during construction, and that defendant would furnish all dimensions and layouts for the building and utilities; that plaintiff kept no account of the work, issued no certificates of payment, never came to the construction site; did no work other than to trace drawings submitted to him by the defendant; did not live up to either the oral or written agreement; that the drawings plaintiff submitted were delayed; that he has been paid $2,500 in full and complete satisfaction of his work on the drawings and has in fact been grossly overpaid, for which reason defendant is not indebted to him in any amount.
At the conclusion of the trial a verdict in favor of the plaintiff for the full amount sued upon plus interest from July, 1955, was directed by the court. The defendant filed a motion for a new trial on the general grounds which was later amended by the addition of two special grounds, and the overruling of this motion is assigned as error.
(b) The defendant's testimony shows no such novation of the written contract as contemplated by Code 20-115, nor any rescission by consent or release by the other contracting party as contemplated by Code 20-905. If the contract were severable a different question might be presented, but since it is an entire contract (Collins v. Frazier, 23 Ga. App. 236 (1), 98 SE 188), and was never rescinded or modified, it could not be merely disregarded at the pleasure of the defendant by his failure to call upon the plaintiff for a part of the services which the plaintiff had agreed to render. The contention that the written contract was not considered the working agreement between the parties is without evidence to support it.
(c) There is some testimony suggesting a failure of consideration by reason of faulty design on the part of the architect; however, not only is this defense not pleaded, but the construction difficulties due to faulty design as opposed to faulty construction are not shown and no facts are testified to which would allow a jury to arrive at a figure which the defendant would be entitled to recoup as an offset against the contract price. Thus no issue was presented on failure of consideration. Hall v. Southern Sales Co., 81 Ga. App. 392 (58 SE2d 925); Clegg-Ray Co. v. Indiana Scale &c. Co., 125 Ga. 558 (54 SE 538).
(d) If the defendant's answer is to be considered a plea of accord and satisfaction by reason of the $2,500 payment, this issue also was unsupported by proof. Defendant wrote plaintiff a letter on August 9, 1954, stating in part: "I received your letter of August 7th with the enclosed invoice and am enclosing my check for $2,500 as part payment as per the contract agreement," a statement lending credence both to plaintiff's contention that the payment was an installment payment and that the parties were operating under the written contract. The defendant testified: "When I made this $2,500 payment it was my understanding that was in full and final settlement to Mr. Chase for his services, work he had done that was satisfactory. I thought I didn't owe him any more. After I paid the $2,500, then the delay on the drawings and the change of the drawings, what they had deviated from that, and the change of the design of the building, I felt I didn't owe him any more money." It is obvious that the defendant was detailing his own feeling rather than testifying to any accord and satisfaction between the parties.
(e) Evidence as to the cost of constructing the building upon which the 6 percent fee is predicated is based upon figures furnished by the contractor Hodges and upon which payment to him was made. They are undisputed except for one item constituting a freight charge in the amount of $749.84. It was at least a jury question as to whether the plaintiff was entitled to receive 6 percent of this amount; however, the plaintiff if he so desires may write off this sum, rendering the error harmless.
2. Plaintiff sued for and obtained a verdict for interest on the principal sum from July 29, 1955. The declaration alleged that "construction was completed on or about July 29, 1955, at which time petitioner demanded of defendant owner the remaining balance due which demand was refused by defendant." No demand was proved until June 9, 1960. The defendant contends that the amount due was unliquidated for which reason no interest is recoverable until after this date. "All liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them; if payable on demand, from the time of the demand." Code 57-110. The plaintiff testified that he wrote the defendant on November 10, 1955, requesting information as to final cost of the building, to which no reply was received, and the defendant denied receiving this letter. The defendant testified: "The building wasn't completed in July, 1955, because my last invoice from Tom Hodges, I think, was in March, 1955. The building was complete when my wife and I moved down in February, 1955." Further, the undisputed figures as to construction costs are broken down into monthly expenditures commencing in August, 1954, and ending with the month of January, 1955. There is no evidence which would authorize any inference that the work had not been completed and the cost ascertained by July 1955, the date from which the plaintiff arbitrarily sought to recover interest, and the only question is whether this cost was a liquidated or unliquidated amount as of that date. "A debt is liquidated when it is certain how much is due and when it is due. An unliquidated claim is one which one of the parties to the contract or transaction can not alone render certain. Roberts v. Prior, 20 Ga. 561." Lincoln Lumber Co. v. Keeter, 167 Ga. 231, 236 (145 SE 68). In Lively v. Munday, 201 Ga. 409, 422 (40 SE2d 62, 173 ALR 1295) it was held that under a contract for the purchase of real estate specifying "terms cash," the purchase price to depend upon the acreage as shown by a survey to be made by the purchasers, interest on the principal sum would begin to run from the date of possession by the purchasers although they did not procure a survey and thus determine the amount of the purchase price until a later date. In the present case the cost of erection of the building was or should have been known at the time of completion and there is no evidence suggesting that it was not ascertained by and known to the defendant at that time; the plaintiff, of course, had no means of discovering the total except through the defendant or his contractor, and he did not question the figures which he procured from this source, and which had previously been accepted as correct by the defendant. The claim was therefore a liquidated amount prior to July 29, 1955. The plaintiff was entitled to interest thereon without demand from the time it became liquidated, that is, from the time of ascertainment of the amount by reason of completion of the building, and the judgment awarding interest was not erroneous. No interest could be awarded prior to such date for the reason that the plaintiff did not pray for it in his petition, but the mere fact that he might have been entitled to more than he received under proper pleadings is not a defect of which the defendant can take advantage, since it is in the defendant's favor.
3. Special ground 2 of the amended motion for a new trial complains of error by the trial court in failing to declare a mistrial on motion of the defendant because of testimony indicating that the contractor Hodges had also had to file suit against the defendant to obtain his fee. Since the verdict was demanded by the evidence, and since the case did not in any event go to the jury, this ground is without merit.
The trial court did not err in overruling the motion for a new trial except in the particular specified in Division 1 (e) of this opinion.
Judgment affirmed on condition plaintiff write off $44.99 and interest thereon from the amount of the judgment, otherwise reversed. Felton, C. J., and Eberhardt, J., concur.
Briscoe & Ridgway, Thomas W. Ridgway, contra.
William L. Preston, for plaintiff in error.
Friday May 22 22:32 EDT

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