Hill v. Balkcom

5 S.E. 200, 79 Ga. 444

• Court: Supreme Court of Georgia
• Decided: February 18, 1888
• Status: Published

Opinion

Blandford, Justice.

Hill brought this action against Balkeom upon a coni ract, in which he (Hill) had agreed to teach Balkcom’s children, together -with other children, for nine months' for $45. The court below held that, inasmuch as he showed that he did not teach but eight and a half months, he could not recover. To this ruling Hill excepted, and this is the error complained of here.

"VVo think the court below was right in its ruling. Had the suit been upon a quantum, meruit or a general indebitatus assumpsit, it would have presented a very different question. But where the action was upon the contract itself, inasmuch as he showed he had not performed his part of the contract, he of course could not recover. •

This case is similar to that of Cutter vs. Powell, reported in Smith’s Leading Cases, Vol. II, Part 1, p. 1. In that case, a seaman engaged, for a certain sum, to proceed, continue and perform certain duties during a voyage from Kingston, Jamaica, to Liverpool; and he died a few days before reaching the port of Liverpool. The court of King’s Bench held that his administratrix could not recover upon an indebitatus assumpsit; that performance on his part was a condition precedent to the payment of the money by the other contracting party. That is a very interesting case;.and the English and American n.otes to the case as reported, embrace numerous cases on this subject. Other cases upon the same line were referred to by the counsel who argued this case, among them decisions of our own court.

A contract is either entire or severable. If it be severable, the party who has performed a portion thereof may recover for that portion from the other contracting party. And an entire contract may be apportioned. For instance, if Hill had agreed to teach this school for nine months at $5 per month, the contract could have been apportioned, although he had failed to teach for the full term agreed upon. Upon this subject see code, §§2641, 2725, 2726; also 19 Ga. 416; 30 Ga. 877; 41 Ga. 331; 43 Ga. 305; 53 Ga. 648; 22 Ga. 184. In the case of Freeman vs. Greenville Masonic Lodge, 22 Ga. 184, a contractor agreed to build a house, the work to be paid for in instalments at stated times, but having failed to complete the work, the building was accepted and finished by the other party; and this court held that the contractor could recover for his services upon the part he had built.

There is another class of decisions to the effect that, where there is a special contract which has been performed on one side, and there is nothing left to be performed but payment on the other, a recovery can be had either upon the contract, or upon a general indebitatus assumpsit or quantum meruit. Such is the case of Hancock vs. Ross, 18 Ga. 364; and there are various other cases to the same effect.

Judgment affirmed.