Trustees of the Monroe Female University v. Broadfield , 30 Ga. 1 ( 1859 )

By the Court.

Lyon, J.,

delivering the opinion.

The defendants entered into a written contract with plaintiff to finish and complete the old Botanic brick building at Forsyth, furnish all materials, etc., according to specifications particularly set out in said contract, for which the plaintiffs agreed, as is stated in the pleadings, to pay them $3,527 00. The defendants entered upon the work, and afterwards delivered the building to the plaintiffs, which they accepted as finished according to the contract, and agreed to pay defendant for the same, and did pay, as is also stated, the amount agreed on by the contract, except something less than $200 00. The work was finished in May, 1853, and in July, 1854, one of the girders, and framing supporting the ceiling and floor above the Assembly room, or Chapel of the building, gave way and fell. The girder that gave way, and which evidently caused this mischief, rras of chestnut, brash, knotty, and wholly incapable of supporting the weight made to rest upon it. To repair this damage, occasioned by the giving way of the girder, and of frame work, and falling of plaster^ and to repair and refit the chapel, or assembly room, was worth $500 00. It actually cost the plaintiffs $535 00 to have the work done over at moderate charges. The roof, at the same time, was in bad order, it leaked so as to damage the whole building, and to repair the roof and put it in good condition was worth $500 00. This action was brought, by the plaintiff, against the defendants to recover these damages, amounting in the whole to $1,000 00.

1. The written contract of the defendants, in these respects was, that they would “ repair the roof with tin gutters at each side and end, with large tin conductors on each corner of the building, to remove the present dome and tin over the same, neatly and water-tight, and should any of the shingling need repairing, to repair the same, so as to make the whole of said roof a good one; to remove certain walls and put in such pillars as might be necessary to support the ceiling ; to repair and put in such girders as, on examination, may be found to be necessary, and to make a nice and complete finish of the assembly rooms ” — the whole “ to be done in a neat and workmanlike manner.”

This is what defendants undertook, and agreed specially to do. Instead- of performing their said contract, they either wholly failed to do so, or done the same in such grossly unskillful and negligent manner, as to cause these damages to the plaintiffs. The breach of the contract on the part of the defendants, as well as the damages sustained by the plaintiffs in consequence, are clearly and incontestibly established by the evidence. Upon these facts the plaintiffs were entitled to a verdict against the defendants for the amount of damages proven, the same being $1,000 00; for no rule of law is better settled than, that for every breach of a contract, the wrongdoer must respond to the injured party, in damages to the extent and in satisfaction of the injury received.

2. That the plaintiffs received the work and paid for it, or agreed to do so, does not affect their right to recover in the slightest degree; it is not even a circumstance to be considered against that right. They are entitled to recover, unless they, at the time of the acceptance, knowing of the defective and neglected work, of the non-compliance by defendants with their contract in all respects, expressly waived a performance of the contract, and agreed to pay the stipulater! prices, notwithstanding. All of which must be made, affirmatively, to appear by defendants, to be available to them as a defense. The evidence in this case falls very far short of this. Was the attention' of plaintiffs called to the fact, that an important girder was brash, knotty, and entirely incapable of supporting the weight resting on it; that the lives of the pupils assembled in the room below would be constantly exposed to the risk of the accident that subsequently did happen ? Their attention was not called to it, and they could not see and examine the girder for themselves, for it was concealed from their view by the floor on one side and the overhead ceiling on the other. Did they see and know that the ceiling of the assembly room, or chapel, was not sufficiently supported by pillars ? It is said that this was such an open, palpable defect, that the plaintiffs must have seen it. True, they could see the number of pillars, but they were not informed as to the number necessary. The defendants undertook, specially in their contract, to put in such pillars as might be necessary to support the ceiling; they were to judge, and to judge correctly, at their peril. The plaintiffs were not presumed to know how many were necessary, else they would have stipulated for the exact number in the contract; being ignorant they left that to the discretion and judgment of the defendants.

Again, did the plaintiffs go on the roof, examine it, and see and know that it leaked so as to damage the whole house? And that, with a full knowledge of all these defects and omissions on the parts of defendants, they still accepted the house and agreed to pay the same price for it, as if it had been done in a neat and workmanlike manner ? It is absurd to think so. So far from it, when they accepted the house, they discovered a spot in the wall a little darker than the balance, and they required even this small defect to be remedied before receiving the work. If they were so particular as to a small matter, how much more so would they have beeu had their attention been called to the great and serious deficiencies in this work. The idea, that they were waiving any of their rights under the contract, never entered their minds; they stood upon the contract, felt bound by it, and accepted the work because they believed that defendants had complied.

We are well aware of the rule, that when work is done under a special contract, and the employer accepts the work in an incomplete .and unfinished state, that then he cannot enforce the contract as to price, etc., but that he must pay for the work actually done, according to its worth, or pro rata. This is not that case, but a very different one, and governed by different principles, as we have already shown.

8. The fact that two concurrent verdicts of the juries have been given for the defendant, makes no kind of difference in this case. The rights of the plaintiffs are too clear and manifest, and the verdict too strongly against the law and the evidence, to let this Court attach the slightest importance to the mere concurrence of juries in the same finding. Those juries might have been influenced by something that is not before us, and we presume were; for how a jury could do otherwise, than find for the plaintiffs, upon this, evidence, if they were properly instructed as to the law, we cannot comprehend. Let that be as it may, this verdict is against the evidence and law, and a new trial must be granted.

Judgmént reversed.