A subcontractor may maintain an action against a property owner for work done thereon in addition to work specified to be performed by the terms of a contract between the subcontractor and the owner's general contractor, where such work was authorized and the benefits received and accepted by the owner.

DECIDED SEPTEMBER 8, 1960.

K. A. Conway, a subcontractor (hereinafter referred to as the plaintiff), filed suit in the Civil Court of Fulton County, against the Housing Authority of the City of Atlanta, Inc. (hereinafter referred to as the housing authority), Byck-Worrell Construction Company, Inc. (hereinafter referred to as the general contractor), National Surety Corporation and Firemen's Fund Insurance Company. The petition, as amended, alleged that the plaintiff entered into a contract as a subcontractor with the general contractor to do certain plastering installation for the construction of Low Rent Housing Project GA 6-7, for which the general contractor had previously contracted with the housing authority. Copies of the respective contracts were attached to the plaintiff's petition. The petition further alleged that the plaintiff had performed all work under the terms of said contract with the general contractor, and that a check was tendered in the amount of $20,000, with a notation "full payment for all services on the housing project GA 6-7, Atlanta, Georgia." At this time the general contractor declined to recognize a claim for $300 for certain work done in a building project.

The petition further alleged that the plaintiff declined to accept the check and the general contractor thereafter stopped payment on it, and has refused to pay any part of the $20,000. The plaintiff attached to the petition copies of certain performance bonds made by National Surety Corporation and Firemen's Fund Insurance Company.

Other allegations of the petition show that the plastering could not be done according to the plans and specifications; that as a result of the plaintiff's test in the first building to be plastered, it was determined that it was necessary to add a bonding agent in order to make the plaster adhere to the surface satisfactorily. These facts were brought to the attention of the officers and agents of the housing authority and the general contractor, and it was decided by these defendants that the plaintiff should apply the necessary bonding agent in order that the plastering job would be satisfactory. The petition alleged that certain named officers and agents of both the housing authority and the general contractor authorized and directed that the plaintiff proceed with the additional work without written authorization, and that the defendants, jointly and severally, agreed that the plaintiff would be paid the fair and reasonable cost of the additional work; that relying upon the authorization agreement, the plaintiff proceeded to perform the extra work, and that such work was completed at a fair and reasonable cost of $9,764.87; that the plaintiff had made repeated demands on the defendants for payment, but they failed and refused to pay the same, or any part thereof. The plaintiff prayed for $30,064.37, plus interest. The plaintiff later amended his petition to show a payment of $20,000 by the general contractor, without prejudice to the rights or obligations of any parties to this action.

General and special demurrers were filed by the defendant housing authority. After hearing, the trial court sustained the housing authority's general demurrer, while not passing on demurrers which attacked the petition on the grounds of duplicity, misjoinder of parties defendant, and multifariousness. To the ruling of the trial court sustaining the housing authority's general demurrer, the plaintiff appeals and assigns this ruling as error. No other ruling is assigned as error.

FRANKUM, Judge.

1. The sole question to be determined is whether or not the plaintiff's petition is subject to a general demurrer. Much of the strenuous and learned argument by counsel for the housing authority should be properly addressed to the demurrers raising the questions of duplicity, misjoinder, and multifariousness. These demurrers were not passed on by the trial court. Consequently, if the petition sets forth a right of recovery in any amount against the defendant, the housing authority, the general demurrer should have been overruled.

The plaintiff at least alleges a cause of action to an amount for the "extra work." Strictly construing the petition, it alleges that certain work was necessary for the proper performance of the original contract which was not provided for in the original plans and specifications, and that this defendant (as well as the general contractor) not only authorized the additional work directly by named officers and agents, but knowingly received the benefits thereof. An implied promise to pay the reasonable value of this work is raised by operation of law. Code, § 3-107. Bailey v. Martin, 101 Ga. App. 63 ( 112 S.E.2d 807); Mitcham v. Singleton, 50 Ga. App. 457 ( 178 S.E. 465); Douglas v. Stephens, 27 Ga. App. 485 ( 108 S.E. 833); Neal Son v. Stanley, 17 Ga. App. 502 ( 87 S.E. 718); Atlantic Coast Line R. Co. v. Blalock, 8 Ga. App. 44 ( 68 S.E. 743). A subcontractor may recover from the owner for additional work expressly authorized by such owner, though the subcontractor was hired by a general contractor. Highsmith v. National Linen Service Corp., 63 Ga. App. 112 ( 10 S.E.2d 237).

Counsel for the housing authority insists that an invoice or a letter of demand attached to the petition as an exhibit, which is addressed to the general contractor, should be construed as conclusively showing that the contract for the extra work was between these parties and not this defendant. We do not agree. The petition alleges that both defendants agreed to be jointly and severally bound to pay for the additional work. See Highsmith v. National Linen Service Corp., 63 Ga. App. 112, supra.

Under the above authorities the trial court erred in sustaining this defendant's general demurrer.

Judgment reversed. Gardner, P. J., Townsend and Carlisle, JJ., concur.