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Breach of contract. Before Judge Mitchell. DeKalb Civil Court. November 16, 1955.
1. (a) The law imposes upon building contractors and others performing skilled services the obligation to exercise a reasonable degree of care, skill, and ability, which is generally taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by others of the same profession. Block v. Happ, 144 Ga. 145 (86 S. E. 316); Porter v. Davey Tree Expert Company, 34 Ga. App. 355 (2) (129 S. E. 557). And, while it is true that, on the acceptance of the work by the owner after the building contractor has rendered the entire service for which he has contracted, the contractor is authorized to proceed to collect the balance due him by the terms of the contract, any damage to the owner resulting through the negligent performance of the contract by the contractor is a matter for recoupment. Block v. Happ, supra. Code 20-1311 provides that "Recoupment is a right of the defendant to have a deduction from the amount of the plaintiff's damages, for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the same contract." If the plaintiff in undertaking to perform the building contract could, by the use of proper care and skill, have avoided the alleged damages to the defendant, and the defendant is required to incur additional expenditures in order to correct the situation brought about by the plaintiff, this would be a proper item of recoupment in reduction of plaintiff's demand. Freeney v. Pape, 185 Ga. 1, 4 (7) (194 S. E. 515); Housing Authority of the City of Carrollton v. Ayers, 211 Ga. 728, 733 (88 S. E. 2d 368).
(b) "Recoupment may be pleaded in all actions ex contractu, where from any reason the plaintiff under the same contract is in good conscience liable to defendant. In all cases where recoupment may be pleaded, if the damages of the defendant shall exceed in amount those of the plaintiff, the defendant shall recover of the plaintiff the amount of such excess." Code 20-1314.
(c) Where, in such a case, the defendant by cross-action claimed such damages as indicated above, his action is not one arising ex delicto and is not in the nature of a set off such as to require the grant of affirmative equitable relief and is not such an action as that in those cases exemplified by Bibb Basket Co. v. Eufaula Bank & Trust Co., 42 Ga. App. 394 (156 S. E. 310).
(d) Where such an action is brought by the building contractor against the owner in a court of law only, which has no equitable powers, and has a jurisdictional limitation of $1,000 on the amount recoverable in that court; and, the defendant owner in his original cross-action, in the nature of a recoupment seeks to recover damages in the amount of $3,000, such cross-action may be amended to reduce the amount claimed to a sum within the jurisdictional limitation of the court. Code 81-1301.
(e) Under an application of the foregoing principles of law to the facts of the present case, in which the plaintiff seeks to recover a balance due under a contract for the remodeling of the home of the defendants; and the defendants in their cross-action allege that the plaintiff's failure to perform his obligations properly under the terms of the contract resulted in specified items of damage to them, the cross-action is in the nature of a recoupment, of which the court, as one of law only, has jurisdiction; and such cross-action is amendable to reduce the amount of damage claimed to a sum within the jurisdictional limitation of the court. The trial court, consequently, did not err in overruling the general demurrer to the original cross-action, in overruling the general demurrer to the crops-action as amended, or in overruling the objections to the amendment to the cross-action.
2. In such a cross-action, however, as indicated above, the proper measure of the owners' damage would be the difference of the value of the house as finished by the building contractor and the house as it ought to have been finished under the terms of the contract (Small v. Lee, 4 Ga. App. 395, 61 S. E. 831; Kendrick v. White, 75 Ga. App. 307, 43 S. E. 2d 285), and the value of the house before and after the work done by the contractor is not a proper measure of the owners' damage. Where, however, in their original cross-action, the owners enumerated the various items of damage and allege an improper measure of damage, such defect cannot, by an oral motion to dismiss in a nature of a general demurrer, be urged at the time of the trial. Such an allegation of an improper measure of damage would be subject only to a timely written special demurrer. Ford v. Fargason, 120 Ga. 708 (48 S. E. 180).
3. While "performance as a condition precedent to a recovery on the contract must, according to the rule of the common law, be strict performance, in accordance with the terms of the contract and good faith and substantial performance is not enough," (17 C. J. S. 1085, 508; Haynie v. Murray, 74 Ga. App. 253, 39 S. E. 2d 567), "the hardship of the rule requiring strict performance in order to permit recovery on a contract generally, when applied to a contractor who has undesignedly violated his contract and the inequitable advantage that it gives to an owner who receives and retains the benefit of the builder's labor and materials have led to its qualification; and it is generally held that, where the compensation is due only on the performance of the contract, a literal and strict performance is not required, and if the builder acting in good faith and intending and attempting to perform his contract, does so, he may recover the contract price, notwithstanding slight and trivial defects or deviations in performance, for which compensation may be made, in all its material and substantial particulars, by an allowance to the owner," 17 C. J. S. 1087, 509; Bobbs v. Shadburn, 65 Ga. App. 683, 16 S. E. 2d 234); and, "where a defendant prevents the performance of a stipulation of a contract undertaken by the plaintiff, he is estopped from setting up in his own behalf any injury which may have resulted from the non-performance of such condition." Stimpson Computing Scales Co. v. Taylor, 4 Ga. App. 567 (4) (61 S. E. 1131); Byek v. Weiler Co., 3 Ga. App. 387 (59 S. E. 1126).
4. Under an application of the foregoing principles of law to the facts of the present case, the trial court erred in disallowing the plaintiff's amendment to its original petition. While the gist of the original petition was that the contract had been completed, the plaintiff would be entitled to recover upon a showing of substantial performance of the contract or upon a showing of prevention of performance by the defendants, and it was entitled to amend in this petition so as to allege that the contract had been completed "with the exception of some minor corrections that the plaintiff was prevented by the defendants from completing." The trial court's error in refusing to permit this amendment rendered all further proceedings nugatory.
Allied Enterprises, Incorporated, doing business as Allied Construction Company, brought an action in two counts for breach of contract against Mr. and Mrs. Harold Brooks in the Civil Court of DeKalb County. The material allegations of count 1 are substantially as follows: On June 18, 1954, the defendants contracted for the services of the plaintiff to do the following work on their home: Remove plaster in living room and dining room, and replace with new plaster; level floor in bedroom and dining room; install asphalt tile in kitchen; move sink under double window in kitchen; move washing machine and dryer; case door between kitchen and living room; install two electrical outlets; paint and finish floors; remove paper from living room wall and ceiling; remove wall between kitchen and living room and plaster ceiling; no painting; owner to paint. As consideration for these services, the defendants agreed to pay the plaintiff $1,300, of which the defendants have paid $500. The plaintiff has completed the contract and has filed its lien in the office of the clerk of the Superior Court of DeKalb County. There is a balance due and owing of $800, which the defendants have failed and refused to pay.
The allegations of count 2 are substantially the same as those in count 1, save that in the latter count the plaintiff seeks to recover in quantum meruit the sum of $800.
Total cost of job contractor price $1,300. Five Hundred dollars paid down this date June 18 -- 54, $800 to be paid 45 days after completion of job, every 30 days $25.56 for 36 mos. per F. H. A. plan -- All for the sum of Thirteen Hundred Dollars and 26 cents contractor price $1,300.26 to be paid by: Harold Brooks $800.00 at $25.56 45 days after completion of job every 30 days for 36 mos. per F. H. A. plan. This agreement shall become binding only upon the contractor's written acceptance hereof in the space indicated below or upon the contractor's commencing performance and upon such acceptance or commencement of performance this shall constitute the entire contract and be binding upon the parties hereto, there being no covenants, promises, warranties, or agreements, written or oral, expressed or implied, except as herein set forth. No sales representative of the contractor has authority to alter the terms of this agreement in any particular. The contractor shall not be responsible for damage or delay due to strikes, fires, accidents or other causes beyond its reasonable control. The contractor carries Workman's Compensation and Public Liability and Property Damage Insurance, but does not assume risks of any character under this contract other than covered by such insurance. Checks or money orders must be drawn or indorsed to the order of Allied Construction Company. In event of cancellation vendee agrees to pay 25% of contract price to vendor for damage for breach of contract."
(12) On June 18, 1954, the defendants paid the plaintiff $500 to apply on the work to be done to their home. (13) Thereafter workmen came to the defendants' home and began tearing out the plaster that was then on the walls of the front room and dining room and replaced it with a rough, sandy surfaced plaster, rather than with smooth plaster as called for in the contract. (14) The plaster placed on the walls is not even, and instead, is rough, and in some places is flush with the base boards and casings around the doors and windows, and in other places is from 1/8 to 1/4 inch away from the point where it should be joined to the base boards and casings around the windows and doors. (15) Instead of a white plaster being placed on the walls, the walls are a rust, or brown, color, and if painted, the rust or brown color will not be completely covered as the color in the plaster will bleed through new paint that may be placed on the walls. (16) The plaintiff's servants and workmen failed to cover the registers where the heat from the hot air furnace was conducted into the living room and dining room, and allowed the dust, dirt, old plaster, and debris to be put in the hot air ducts leading from the furnace, and it became necessary for the defendants to have the ducts cleaned and reconnected together at places were the plaintiff's workmen had caused the air ducts to become disjointed, all at a cost to the defendants of $42.50, an item of damage for which they sue. (17) The walls in the defendants' living room and den are not level, and the natural finish placed on the floors instead of being smooth is sandy, and there is grit and rough places on the floors. (18) The walls in one of the bedrooms has cracked as the result of the plaintiff's inferior work in seeking to level the house and to place additional footings under the house. (19) The door that was to be replaced between the dining room and kitchen was removed from the defendants' property and although the defendants have demanded that the plaintiff return their door, it has failed and refused to do so. (20) Instead of plastering the wall where the sink was removed in the kitchen, the plaintiff left an open hole, causing a draft in cold weather and making it impossible to hear the kitchen properly. Over this hole the plaintiff has placed a metal siding which is not substantially installed. (22) The electrical receptacles were left loose and in unsafe condition in the kitchen and living room to such an extent that the washing machine will start without anyone's turning on the switch, or touching the machine. (23) An open hole was left for an electrical outlet, but no electrical outlet or fixture was placed in this hole in the living room floor. (24) The walls in the den are warped and "bucked." (25) The tile flooring placed on the kitchen is "bucked" and four or five pieces of tile are broken. Several of the pieces of tile which the plaintiff replaced do not match the original colors which the defendants selected for the kitchen floor. The plaintiff failed to place moulding in five of the corners of the kitchen, and left metal edges that are sharp and exposed to such an extent that the defendants and their children are compelled to be very careful not to go near the exposed metal for fear of being cut or scratched. (26) The floor in the kitchen was not made level before the tile floor was installed, and the flooring now follows the contour of the floor in which there are high and low
places. (27) The air duct that was removed from the breakfast room has never been replaced by the plaintiff and the defendants have no heat in their kitchen, except from the kitchen stove, whereas before the plaintiff started work, the defendants had furnace heat in this area. (28) When the plaintiff first started the job it promised to complete all work within a period of 12 working days. (29) The plaintiff worked on the job for six weeks, has not yet completed it, and now says that it will require an additional 15 days to complete the work. (30) The plaintiff represented that it had skilled workmen to perform the work, but brought some workmen who were not skilled. (31) The plaintiff represented that its skilled workmen would do a good job satisfactory to the defendants, but no part of the work has been done in a workmanlike manner, and none of the work is satisfactory to the defendants. (32) The defendants have sought the services of other reputable contractors to complete the work they wanted done. In each and every instance, these contractors would not undertake the work unless all the plaster in the front room, dining room, den and middle bedroom could be replaced, which would involve an expense of $590. (33) The defendants have been unable to get any reputable contractor to do any work in their home except to clean out the plaster from the air ducts and reconnect them. (34) To complete the contract and do a workmanlike job in the defendants' home as it has been left by the plaintiff, will cost the defendants not less than $1,717.50. (35) Prior to the time the plaintiff did any work in the defendants' home, it had a reasonable market value of $12,000. (36) After the plaintiff had completed such work as it did in the defendants' home and left the work in an incompleted condition, the defendants' home had a reasonable market value of $9,000. (37) The difference in the $12,000 value before the plaintiff worked on the defendants' home and the $9,000 value after such work is $3,000, an item of damage for which the defendants sue. The defendants pray damages in the amount of $3,000.
Upon the day of the trial, the plaintiff sought to amend its petition by alleging that it has completed the contract "with the exception of some minor corrections that the plaintiff was prevented by the defendant from completing." The defendants urged an oral special demurrer to the petition, which was sustained, and in its bill of exceptions error is assigned upon that judgment.
Upon the day of the trial the plaintiff made an oral motion, in the nature of a general demurrer to dismiss the defendants' cross-action, upon the ground that the defendants in suing for damages of $3,000 alleged that they had suffered such damage by reason of the diminution in the market value of their home in such an amount; and that such measure of damage is illegal and contrary to law in such cases as the present one, where the defendants' pleadings show a substantial performance of the work contracted for; and upon the further grounds that the cross-action is in the nature of an action in tort and cannot be set off against the plaintiff's action in contract in the Civil Court of DeKalb County, as that court has no equitable jurisdiction, and the sum for which suit is brought in the cross-action exceeds the jurisdiction of that court. The trial court denied this motion to dismiss, and the plaintiff assigns error upon that judgment.
Upon the day of the trial the defendants struck paragraph 10 of their counterclaim, and substituted in lieu thereof an allegation that the plaintiff had injured and damaged the defendants in the sum of $1,000 by reason of facts and allegations set forth and for which sum they are suing. They likewise amended their prayer by substituting $1,000 for the $3,000, for which judgment was prayed. The plaintiff objected to this amendment of the counterclaim, upon the ground that it was a conclusion of the defendants with no facts alleged to support damages for $1,000; that the factual pleadings claimed a diminution of $3,000 in the market value of their property, which was outside the jurisdiction of the court, and this sum could not arbitrarily be reduced by amendment to $1,000 to bring the counterclaim within the jurisdiction of the court. In its bill of exceptions the plaintiff assigns error upon the overruling of his objections to such amendment.
Following the allowance of the amendment to the defendants' counterclaim, the plaintiff renewed its oral motion in the nature of a general demurrer to dismiss the defendants' counterclaim as amended. The trial court denied this motion, and error is assigned thereon.
The jury returned a verdict in the amount of $800 in favor of the defendants and against the plaintiff. The plaintiff's motion for a new trial, based upon the usual general grounds and 11 special grounds, was denied, and error was assigned upon that judgment.
The plaintiff's motion for a judgment notwithstanding the verdict was denied, and error is also assigned upon that judgment.
Alton T. Milam, Ward Matthews, Jr., contra.
Saul Blau, for plaintiff in error.
DECIDED MAY 7, 1956.
Saturday May 23 02:12 EDT

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