Rome Hotel Co. v. Warlick , 87 Ga. 34 ( 1891 )

Simmons, Justice.

1. The facts in this case will be found in the official report. Under these facts the trial judge did not err in overruling the motion in arrest of judgment set out in the bill of exceptions. A part of the lien claimed on the hotel by the defendants in error, was for extra work for which no price had been agreed upon by the parties. The plaintiffs in the court below claimed a lien for $2,691.63. This included the work and material specified in the written contract, and extra work and material for which there was no written contract and no agreed price. The jury found a verdict for $2,591.63, one hundred dollars less than the amount claimed by the plaintiffs in the court below. The defendant in the' court below moved in arrest of judgment for this reason, claiming that, the jury hating found less than the plaintiffs claimed, the verdict showed that the plaintiffs had not fully complied with their contract and therefore were not entitled to a lien. This might be true, perhaps, if the whole amount had been fixed in the written contract, but as only a part of it was fixed therein, and as the remainder was for extra work as to which there was no agreed price, and as the parties differed in their testimony in regard to what the price should be, the fact that the jury found less than was claimed for the extra work did not deprive the plaintiffs of their lien. There was, therefore, no error in refusing to arrest the judgment on this ground.

2. The fourth ground of the motion for a new trial complains that the court erred in charging the jury as follows: “If it was the contract that the hotel company was to close up the halls by storm-doors, and if the hotel company failed to close up the halls, and if there was a failure to produce the proper degree of heat, by reason of such neglect to put in storm-'doors, then the plaintiffs would not be responsible for the failure, if it was caused by the failure to close up the halls.” This chargeisallegedto.be error, (1) because parol testimony will .not be received to vary a written contract; and (2) because if there was such a contract as to closing the halls with storm-doors, it was merged in the written contract.

The general rule is, that parol testimony will not he received to vary the terms of a written contract, and that all the agreements and negotiations are merged in the written contract; but under the facts disclosed in this record, we do not think the court erred in giving this instruction to the jury. The record discloses that the plaintiffs in the court below did not -introduce or bring into the case anything as to the closing of the halls, but that it was first brought out by counsel for the defendant, on his cross-examination of Bartow Warlick, one of the witnesses for the plaintiffs ; and no objection was made to the testimony and no motion to exclude it, so far as appears from the record. And from the examination of this witness and others, it seems to have been made an issue in the case as to whether the contract was that .the halls should be closed with storm-doors. The issue having been made by the testimony, and no objection being made to it and no motion to exclude it, it was the right and the duty of the court to instruct the jury upon it.

3. The 5th ground complains that the court charged the jury as follows: “If the plaintiffs quit the extra work for fear that they would not get their pay, they had the right to do so, and a failure to complete the extra work for that reason would not defeat their lien.” Under the evidence disclosed by the record, we think the court erred in giving this charge. "We do not think the law allows a contractor, mechanic and material-man to violate a contract and claim a lien for work done, because of an apprehension or fear that he will not receive his pay. So far as disclosed by the evidence, the defendant in the court below had not, at the time the plaintiffs quit the work, failed or refused to pay them therefor. If the contract had been that the defendant was to pay them by the day or the week or the month, and the defendant had failed to make the payment when due, then perhaps the plaintiffs would he justified in stopping work, and would he authorized to claim a lien for the work already done; but upon a mere apprehension or fear that they would not be paid at the time for payment, we do not think they could quit woi’k and claim a lien. Before a lien upon real estate can be established, the code, §1990, requires that there shall he “a compliance with his contract by the person claiming the lien.” The plaintiffs having failed to complete their contract as to the extra work, simply on account of the fear that they would receive no compensation therefor, they are not entitled to a lien for so much of the extra work as they have done, but as to such woi’k are merely entitled to a general judgment upon a quantum meruit; and this only because the defendant received the benefit of the work. So far, therefore, as the verdict sets up a special lien for this extra work, it is erroneous, and to that extent the lien should be discharged. To ascertain this amount we have made a calculation based upon the figures set out in the record, and we find that to the extent of $553.41, 'the verdict sets up a lien on account of extra work and material. As we have seen, the verdict is for $2,591.63, this being a balance reached after deducting payments to the amount of $2,356.98 credited by the plaintiffs on their account before this suit was brought. The aggregate account, therefore, so far as the jury found it to be correct, amounted to $4,948.61. Of this, the part which came within the written contract (to wit, heating system, $1,452.00, closets and plumbing, $1,508.50 and $322.00, aud gas-pipe at 10 cents per foot, $609.40) amounted to $3,891.90 ; leaving the amount of $1,056.71, which must have been allowed for work and material outside of the written contract. As above stated, before the account was sued, payments to the extent of $2,356.98 were made thereon; and these payments should be prorated between that part of the account which came within the written contract, and that part which the jury recognized as correct for extra work and material. Thus apportioning the payments, it will be seen that of the aggregate balance for which the jury set up a lien, to wit, $2,591.63, the sum of $553.41 must be the proportion of the balance found to be due for extra work and material; and as already said, the verdict was to this extent improper. We therefore reverse the judgment in this case, unless the defendants in error will write off and discharge their special lien for the $553.41. If they will do this within thirty days after the judgment of this court is made the judgment of the superior court, the case will stand affirmed.

4. As to the 1st, 2d and 3d grounds of the motion, which are the usual ones that the verdict is contrary to law, evidence, etc., we will say that the evidence appears to be conflicting upon the points made in the pleadings; and the trial judge being satisfied with the finding of the jury upon these issues, we will not interfere with his discretion in overruling the motion on these grounds.

Judgment reversed, with direction.