Ace Neon Corp. v. Griffin Construction Co. , 75 Ga. App. 125 ( 1947 )

Under the pleadings and the evidence in the instant case, the trial judge did not err in instructing the jury as follows: "If you find against the defendants in this case, you will find against all three of them, under the issues made here by the pleadings. If you find in favor of the defendants, you will find in favor of all three of them. There is no dispute or controversy or issue for you to determine as among the several defendants. They have filed a joint answer, as I have stated to you."

DECIDED APRIL 25, 1947. The plaintiff, Ace Neon Corporation, brought suit against Palmer Electric Company, Griffin Construction Company, and Henry Grady Hotel Company Inc., to recover a sum of money alleged to be due the plaintiff from the defendants for labor and materials furnished to the defendants for the improvement of certain property in which defendant Henry Grady Hotel Inc., has a leasehold interest. The defendants were sued jointly, and the petition prayed for "a general judgment against defendants for the amount due as aforesaid." No demurrers were filed to the plaintiff's petition, but the defendants filed a joint answer in which they admitted that the plaintiff was employed to do certain work on the property described in the petition, but denied that they were indebted to the plaintiff for the reason that the plaintiff had not furnished labor and materials in anything like the quantity and hours alleged in the petition. The jury returned a verdict in favor of the defendants. The plaintiff made a motion for new trial based on the general and five special grounds. This motion was overruled on each and every ground thereof and the plaintiff excepted.

A. M. Parker, witness for the plaintiff, testified in part as follows: "I am president of Ace Neon Corporation doing business as A. M. Parker Neon Incorporated. I have done some work for Palmer Electric Company at the Henry Grady Hotel. The overall contract was with Griffin Construction Company according to my understanding and Palmer Electric Company had the electrical work. I worked directly under Palmer Electric Company. We did the neon work. I was to furnish the material for the lighting throughout. The contract was a verbal one. I had no definite fixed amount for which the work was to be done. [The plaintiff submitted weekly invoices for labor and materials to the defendant Palmer Electric Company.] . . All of the invoices were paid down through the one dated October 19, 1945, without complaint. . . These last three unpaid invoices were objected to and I began to ask the reason that I was not receiving my money. I did not receive payment on these last three invoices and I called on them about it. They said the reason they did not pay these last three invoices was that they preferred additional information with reference to the number of feet of wire and the number of feet of tube also and transformers, itemized, and whether or not any of our employees were working in the office or en route to the hotel. . . I explained to them I had no way of determining that exact time en route back and forth from the hotel to the place of business, I had no way of determining those hours without camouflaging the bill up. . . The majority of the work was done at our place of business. . . The reason they gave me for not paying these invoices after they had accepted, approved and paid others in exactly the same manner was they said the Henry Grady had to have more information, and I explained to them both that I didn't have that information available without forcing the figures."

On redirect examination the witness testified: "I was instructed to do everything I could to finish this job and be ready at all times to work overtime, and anytime I would be called upon. Yes, Sir, I was being pushed on this job to get it done."

On recross examination the witness testified: "I have seen this blue print made by Mr. George H. Bond. I went by it in doing this job as well as the contract [which] was made for me to perform the services and work called for by that blue print, I didn't connect that. My contract called for me to do the job in accordance with these specifications after they were revised. I had to follow the original blue print which didn't show everything all the way through but was revised all through."

L. H. Palmer, witness for defendants, testified: "I was doing certain electrical work. I made a contract with Mr. Parker, the Ace Neon Corporation, to do the neon work. The blue prints you hand me is the last blue print out. It was varied a little all the way, but this is the blue print and the work was finished up by blue print. As to what contract we made for neon work with reference to the blue print, he was to do it and make a reasonable charge and submit the bills to me and when they paid me I would pay him. The day they paid me I paid him. That was my agreement with the neon people. The work was to be done according to this print and the neon work was to be done in accordance with that blue print."

L. H. Palmer Jr., witness for defendants, testified: "Our company made a contract with Mr. Parker to do the neon work. . . The work was to be done according to the blue print subject to a small variation in length. There was no material or substantial variation. It was worked out ahead of them before they started on the job." The plaintiff contends that the trial judge erred in instructing the jury in the following manner: "I instruct you, gentlemen, that if you find against the defendants in this case, you will find against all three of them, under the issues made here by the pleadings. If you find in favor of the defendants, you will find in favor of all three of them. There is no dispute or controversy or issue for you to determine as among the several defendants. They have filed a joint answer, as I have stated to you."

The plaintiff contends that the above instruction in effect makes it incumbent upon the jury to find none of the three defendants liable if it is shown that one of the defendants is not liable, and that such instruction was reversible error.

The petition was brought against the Griffin Construction Company, the Palmer Electric Company, and the Henry Grady Hotel Company Inc., as defendants for the recovery of exactly the same items for materials furnished and work done on certain described real estate at exactly the same time for the same purpose, and the prayer of the plaintiff is "for a general judgment against the defendants" for the single indebtedness stated in the petition. The defendants filed a joint answer, denying any liability.

"`The general rule of law is thus stated in 1 Parsons on Contracts, p. 11: "Whenever an obligation is undertaken by two or more, or a right given to two or more, it is the general presumption of law that it is a joint obligation or right. Words of express joinder are not necessary for this purpose; but, on the other hand, there should be words of severance, in order to produce a several responsibility or a several right."'" National Bank of Phoenixville v. Buckwalter, 214 Pa. 289 (63 A. 689).

Here the plaintiff in his petition sues all three defendants and asks for a general judgment against the "defendants" for a single indebtedness. There are no words of severance alleged which sought to show a several responsibility, and no words alleged indicative of an intention to sever the total obligation into definite amounts to be borne by each obligor, nor is there anything in the subsequent progress of the proceedings to indicate that the plaintiff sought any other than a joint, general judgment against the defendants for a single indebtedness, or that the defendant contended that there was any issue other than the one that the plaintiff was entitled to a joint judgment or no judgment. Marine Trust Co. of Buffalo v. Richardson, 171 Misc. 556 (12 N. Y. Supp. 2d, 834); Delaware County Nat. Bank v. King, 109 App. Div. 55395 N. Y. Supp. 956; § 118 Restatement of the Law of Contracts, American Law Institute.

Since the primary issue in the case as presented to the jury was whether or not the plaintiff had received reasonable compensation for labor and material furnished to the defendants, we are of the opinion, under the pleadings and the evidence, that the portion of the charge now under consideration could be construed in only one way by the jury; that is, if the plaintiff had received the reasonable value of his labor and material, none of the defendants would be liable, but, on the other hand, if the plaintiff had not received the reasonable value of his labor and material, all the defendants would be liable. In short, the trial judge instructed the jury that the plaintiff was entitled to the reasonable value of his labor and material furnished to the defendants, and that if the plaintiff had not received the reasonable value of his labor and material, he would be entitled to a verdict against all the defendants. We are of the opinion that the alleged errors in instructions to the jury are not cause for a new trial.

All other assignments of error have been carefully considered and have been found without merit.

Judgment affirmed. Gardner and Townsend, JJ., concur.