Empire Mills Co. v. Burrell Engineering & Construction Co.

89 S.E. 530, 18 Ga. App. 253, 1916 Ga. App. LEXIS 263
CourtCourt of Appeals of Georgia
DecidedJune 23, 1916
Docket6649
StatusPublished
Cited by41 cases

This text of 89 S.E. 530 (Empire Mills Co. v. Burrell Engineering & Construction Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Empire Mills Co. v. Burrell Engineering & Construction Co., 89 S.E. 530, 18 Ga. App. 253, 1916 Ga. App. LEXIS 263 (Ga. Ct. App. 1916).

Opinion

Wade, C. J.

Burrell Engineering & Construction Company brought suit against the Empire Mills Company to recover a balance of $882.45, on a contract for the erection of a concrete elevator, and the further sum of $150 for furnishing and installing a certain tank, the total amount claimed aggregating $1,032.45, principal. The defendant filed a plea alleging a breach of the contract on the part of the plaintiff, in that the plaintiff had failed to comply with a certain stipulation in the “brief of specifications” attached to and made a part of the contract, the stipulation referred to being as follows: “All gravel for concrete purposes shall be reasonably free from loam and vegetable matter. All gravel for foundation may be screened through a 2 in. ring. All gravel for bin walls, cupola walls, floors, roofs, columns shall be screened through a 1 1/4 ring.” The defendant alleged that the plaintiff had failed to screen the gravel used in the concrete foundation, and thereby had injured and damaged the said foundation in the sum of $1,000, as more particularly set forth in the plea.' The defendant claimed damages also in the sum of $2,500, because the plaintiff had, by improper construction of the said elevator, injured and damaged a brick building, near which the elevator was erected, as set forth in the plea.

1. The motion for a new trial presents but two questions which need be discussed. One of these relates to the construction of that provision in the building contract which refers to the gravel to be used in the concrete foundation and in the concrete walls. It is [254]*254complained that the court erred in refusing to give a requested instruction to the jury that the word “may” in the sentence “all gravel for foundation may be screened through a 2 in. ring,” "should he interpreted to mean “must,” and that the meaning of this part of the contract is that all gravel must he screened, — that the gravel used for the foundation must be screened through a 2-inch ring, and that used for walls, etc., through a 1 1/4-inch ring. It is also complained that the court erred in submitting to the jury for determination the meaning of the word “may,” and erred further in several instructions to the jury as to the contentions of the parties. In construing every contract it is necessary to look to the purpose intended, and where two constructions are possible, one unreasonable and the other reasonable, to give to the instrument the reasonable construction which would serve to put into effect the evident purpose of the agreement. It was insisted by the plaintiff that the provision as to the screening of-the gravel must be interpreted strictly, and that the meaning of this stipulation is that the building company might, if it so desired, screen the gravel for the foundation through a 2-ineh ring, but if it did not so desire, it was under no obligation to screen this gravel at all. This is undoubtedly the plain meaning of the language used, if it be considered apart from the context- and without regard to the purpose for which this clause must have been inserted in the contract. It must be assumed that the reference to the diameter of the rings in the screen to be used for gravel intended for the. foundation was not inserted in the contract idly and without any purpose whatever. To hold that the contractor was not bound by this clause to screen the gravel for the foundation at all, but the matter was to be solely left to his judgment, with the proviso only that if he should determine of his own free will and accord to screen it, he must use screens with 2-inch rings, would give the contract an absurd construction, as this would permit the contractor to use in the foundation walls anything that could he denominated “gravel,” in the event he preferred not to screen that particular gravel, whereas if he decided to use a screen, voluntarily undertaking the extra expense incident to its use, he must use only gravel small enough to pass through 2-inch rings. In other words, such a construction would leave it optional with the contractor to incur or not incur the expense of screening the gravel used in the founda[255]*255tion walls, but if he should decide, in the interest of good construction and at additional expense to him, to screen this gravel, it would place upon him, without any additional consideration or compensation, the further burden and expense of discarding all stone or gravel that would not pass through the 2-inch mesh. It is clear, then, that if the language relating to the gravel to be used in the foundation was intended to have any meaning whatever, it must have been intended as a stipulation that the contractor must screen this gravel, but would be permitted to use a screen with 2-ineh openings. Again, looking at the context, it appears clear that the meaning of this paragraph of the contract was that all gravel, whether used in the foundation or in the walls, must be screened. If this is not the meaning of the paragraph, why stipulate the size of the ring through which the foundation gravel “may be screened," and in the next sentence further stipulate the size of the ring through which the gravel for the walls, etc., “shall be screened?" It can not be rationally contended that the word “may," used in connection with the foundation gravel, conferred upon the contractor the privilege merely of screening the gravel to be used in the foundation, 'for there is not elsewhere in the contract anything that would suggest that the opportunity to do other and additional work in connection with the preparation of the material to be used in the foundation could in any sense be considered a “valuable" privilege, or a privilege at all to the contractor. Taking the entire paragraph relating to the gravel to be used for concrete purposes, we hold that the only reasonable interpretation to be placed on it is that all the gravel was, by the express terms of the contract, to be screened, but the contractor was authorized to use a screen with larger openings for the foundation gravel than for the gravel intended for the walls. The court erred in failing to thus construe this portion of the contract, and in failing to instruct the jury in consonance with such a construction.

2. Thé other question that we deem it necessary to discuss to some slight extent is that raised by the 14th ground of the amendment to the motion for a new trial, in which it is alleged that the court erred in charging the jury that the measure of damages for the injury to the boiler-house of the defendant “would be the rHfFp.Tp.uce in value between the boiler-house in its condition at the time of the injury, if injury were made to it, for any purpose for [256]*256■which the building, the boiler-house, was used or might be used, and for which it might have a value, and its value for the same purpose after the injury wrought by the defendant company’s breach of its contract in constructing the elevator had been — after that injury had- been effected.” “As a general rule the measure of damages in actions for injuries to real property is the difference in value before and after the injury to the premises. . . In some cases the cost of repair or restoration has been adopted as the measure of damages [Harrison v. Kiser, 79 Ga. 588 (4 S. E. 320), and several other cases]; but in such event the cost of repair must be reasonable and bear some proportion to the injury sustained.” 13 Cyc. 150, 151.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Royal Capital Development, LLC v. Maryland Casualty Co.
728 S.E.2d 234 (Supreme Court of Georgia, 2012)
Tracy Overby v. State
Court of Appeals of Georgia, 2012
Overby v. State
728 S.E.2d 278 (Court of Appeals of Georgia, 2012)
John Thurmond & Associates, Inc. v. Kennedy
668 S.E.2d 666 (Supreme Court of Georgia, 2008)
Wise v. Tidal Construction Co.
608 S.E.2d 11 (Court of Appeals of Georgia, 2004)
GEORGIA NORTHEASTERN R. CO., INC. v. Lusk
587 S.E.2d 643 (Supreme Court of Georgia, 2003)
GEORGIA NORTHEASTERN RAILROAD CO. v. Lusk
574 S.E.2d 810 (Court of Appeals of Georgia, 2002)
Allstate Insurance v. Brannon
447 S.E.2d 666 (Court of Appeals of Georgia, 1994)
Whitaker Acres, Inc. v. Schrenk
316 S.E.2d 537 (Court of Appeals of Georgia, 1984)
Horton v. Georgia Power Co.
254 S.E.2d 479 (Court of Appeals of Georgia, 1979)
Interstate Life & Accident Insurance v. Brown
233 S.E.2d 44 (Court of Appeals of Georgia, 1977)
NEDA Construction Co. v. Jenkins
223 S.E.2d 732 (Court of Appeals of Georgia, 1976)
Rosenbaum v. Dunn
222 S.E.2d 596 (Court of Appeals of Georgia, 1975)
Mutual Life Insurance v. Bishop
209 S.E.2d 223 (Court of Appeals of Georgia, 1974)
American Casualty Co. v. Crain-Daly Volkswagen, Inc.
200 S.E.2d 281 (Court of Appeals of Georgia, 1973)
City of Elberton v. J. C. Pool Realty Co.
111 Ga. App. 765 (Court of Appeals of Georgia, 1965)
City of Elberton v. JC Pool Realty Co.
143 S.E.2d 407 (Court of Appeals of Georgia, 1965)
Southern Railway Co. v. Wooten
137 S.E.2d 696 (Court of Appeals of Georgia, 1964)
Atlantic Coast Line Railroad v. Georgia Railroad & Banking Co.
129 S.E.2d 166 (Court of Appeals of Georgia, 1962)

Cite This Page — Counsel Stack

Bluebook (online)
89 S.E. 530, 18 Ga. App. 253, 1916 Ga. App. LEXIS 263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/empire-mills-co-v-burrell-engineering-construction-co-gactapp-1916.