Maner v. Clark-Stewart Co.

109 S.E. 178, 27 Ga. App. 553, 1921 Ga. App. LEXIS 256

• Court: Court of Appeals of Georgia
• Decided: November 1, 1921
• Docket: 12329
• Status: Published

Opinion

Jenkins, P. J.

1. “ The first grant of a new trial upon certiorari will not be disturbed, unless the judgment under review by the certiorari was absolutely demanded.” Loftin v. Great Southern Asso., 9 Ga. App. 121 (1) (70 S. E. 353); Charles W. Tway Co. v. Hedenburg, 24 Ga. App. 520 (3) (101 S. E. 199).

2. Where a contract provides that a job shall be done by the use of specified materials, the owner for whom the work is to be done and the material is to be used is entitled to stand upon the express terms of the agreement; and the- fact that other and different materials, which were to some extent substituted, may be shown to have been just as good as those specified by the contract, or that it was usual and customary to thus make, use of such other materials in good and workmanlike jobs of similar kind, would not be sufficient to show a substantial compliance with the terms of the contract, but, upon proof of such a variation therefrom, the owner would be entitled to damages. Cannon v. Hunt, 116 Ga. 452 (3), 456 (42 S. E. 734).

Judgment affirmed.

Stephens and Hill, JJ., concur.