Spalding Construction Co. v. Simon

Court of Appeals of Georgia

Spalding Construction Co. v. Simon

137 S.E. 901, 36 Ga. App. 723, 1927 Ga. App. LEXIS 266

CourtCourt of Appeals of Georgia

DecidedApril 16, 1927

Docket17683

StatusPublished

Cited by7 cases

This text of 137 S.E. 901 (Spalding Construction Co. v. Simon) 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.

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Spalding Construction Co. v. Simon, 137 S.E. 901, 36 Ga. App. 723, 1927 Ga. App. LEXIS 266 (Ga. Ct. App. 1927).

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Opinion

Jenkins, P. J.

(After stating the foregoing facts.)

1. “Damages are given as compensation for the injury sustained.” Civil Code (1910), § 4390. Where no agreement fixing the amount of damages in case of the breach of a contract is embraced in the contract itself, the damages-accruing to either party by reason of a breach are such as will compensate him for the injury sustained. While we have been unable to ascertain from the petition how the precise amount sued for has been arrived at, under the allegations of the petition the plaintiff would be entitled to recover the difference between the contract price and the actual cost to him of the premises contracted for by the agreement. This would not include interest on such deferred payments, represented by the lien on the premises, as were contemplated by the agreement, but would include each and every element of damage directly occasioned by the alleged breach of the defendant’s agreement.

2. The plaintiff, having alleged a compliance with the terms of his own obligation, is entitled to recover the amount of the [726]*726judgments obtained against him upon obligations remaining of force on account of the alleged breach of the defendant’s duty-according to the terms of the agreement. Thomas v. Richards, 124 Ga. 942 (53 S. E. 400); Tucker v. Murphey, 114 Ga. 662, 663 (40 S. E. 836).

3. The petition having alleged that the plans and specifications were not attached thereto by reason of the fact that they were beyond the control of the plaintiff and in the possession of the defendant, it was not demurrable on account of their not being set forth.

4. The third ground of demurrer is without merit, since the only reasonable construction of the statement contained in exhibit B, providing “it is understood and agreed that all prior agreements entered into by the parties, as evidenced by agreement of even date herewith, are cancelled,” is that it refers to the previous agreement with reference to the construction of the bungalows, and does not mean that the parties were left without any agreement.

Judgment affirmed.

Stephens and Bell, JJ., concur.

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Jenkins, P. J.

(After stating the foregoing facts.)

1. “Damages are given as compensation for the injury sustained.” Civil Code (1910), § 4390. Where no agreement fixing the amount of damages in case of the breach of a contract is embraced in the contract itself, the damages-accruing to either party by reason of a breach are such as will compensate him for the injury sustained. While we have been unable to ascertain from the petition how the precise amount sued for has been arrived at, under the allegations of the petition the plaintiff would be entitled to recover the difference between the contract price and the actual cost to him of the premises contracted for by the agreement. This would not include interest on such deferred payments, represented by the lien on the premises, as were contemplated by the agreement, but would include each and every element of damage directly occasioned by the alleged breach of the defendant’s agreement.

2. The plaintiff, having alleged a compliance with the terms of his own obligation, is entitled to recover the amount of the [726]*726judgments obtained against him upon obligations remaining of force on account of the alleged breach of the defendant’s duty-according to the terms of the agreement. Thomas v. Richards, 124 Ga. 942 (53 S. E. 400); Tucker v. Murphey, 114 Ga. 662, 663 (40 S. E. 836).

3. The petition having alleged that the plans and specifications were not attached thereto by reason of the fact that they were beyond the control of the plaintiff and in the possession of the defendant, it was not demurrable on account of their not being set forth.

4. The third ground of demurrer is without merit, since the only reasonable construction of the statement contained in exhibit B, providing “it is understood and agreed that all prior agreements entered into by the parties, as evidenced by agreement of even date herewith, are cancelled,” is that it refers to the previous agreement with reference to the construction of the bungalows, and does not mean that the parties were left without any agreement.

Judgment affirmed.

Stephens and Bell, JJ., concur.

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137 S.E. 901, 36 Ga. App. 723, 1927 Ga. App. LEXIS 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spalding-construction-co-v-simon-gactapp-1927.

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