Opinion
38049, 38061.
DECIDED MARCH 18, 1960.
Action on contract. Chatham Superior Court. Before Judge McWhorter. October 1, 1959.
Lewis, Wylly Javetz, John C. Wylly, for plaintiff in error.
Oliver, Davis Maner, Edwin Maner, Jr., contra.
1. The court did not err in overruling the motion to dismiss the action.
2. The court did not err in sustaining the demurrer to the defendant's plea of accord and satisfaction.
3. The court erred in overruling the general and certain special demurrers to the answer.
DECIDED MARCH 18, 1960.
The Mayor Aldermen of the City of Savannah sued Oglethorpe Park, Inc., to recover $8,700 alleged to be due under the terms of an oral contract between the parties. The petition as amended substantially alleged: that under authority of a joint resolution by the plaintiff and Chatham County the parties plaintiff and defendant orally agreed that in consideration of the plaintiff's constructing and operating in a subdivision owned at that time by the defendant a water and sanitary sewer system connected to the plaintiff's water and sewer system the defendant would pay for the portion of such system within the subdivision as was let out for bids and pay a connection charge of $100 to the plaintiff for each structure connected to the sewer lines draining into the plaintiff's sewage treatment plant; that the defendant had knowledge that it might be necessary to use some temporary means of sewage disposal if the plaintiff's collector line was not completed by the time the Oglethorpe Park system was constructed and a temporary system was built, presumably by the defendant; that the plaintiff would pay the contractor for the work and that the defendant would reimburse the city the amount of that portion of the contract which was the sewer system to serve the defendant's subdivision exclusively; that the defendant paid all of the amounts due under the aforesaid contract except $8,700 due for connecting 87 houses in defendant's subdivision with sewer lines running into the plaintiff's sewage treatment plant; that the plaintiff had fully performed and executed its contract and each and every obligation in the premises; that defendant has accepted said performance and received the full benefit of the agreement and has breached its contract and refuses to meet its obligation as aforesaid. The defendant filed a plea of accord and satisfaction which as amended showed that the check given in full payment for the amount due the plaintiff was in response to a letter to the defendant demanding payment for the part of the sewer and water system built within the subdivision but not demanding payment for the $8,700 connection fees. The court sustained the demurrer to the plea of accord and satisfaction and dismissed it. The defendant made a motion to dismiss the action in the nature of a general demurrer the ground of which motion was that the petition showed on its face that drainage from the structures in the subdivision was not made into lines draining into the plaintiff's sewerage [sic] treatment plant but into a temporary disposal unit constructed by and at the expense of the defendant. The court overruled the defendant's motion to dismiss. The defendant excepts to the dismissing of its plea of accord and satisfaction and to the overruling of its motion to dismiss the action.
The defendant filed an answer and amended it. The answer is voluminous but the kernel of it is that the defendant admitted the contract alleged but contended that a temporary disposal system had to be built to take care of some of the houses in the subdivision before the main lines in the subdivision had been completed so that the sewage could be run into the city's sewage plant, that the construction of the temporary system was an obligation of the city and since the defendant paid out more to construct the temporary system than it owed for the 87 connections it was not indebted to the plaintiff in any amount. The plaintiff filed general and special demurrers to the answer and a motion to strike the answer. The court sustained some special demurrers to the answer and overruled the general and other special demurrers and the motion to strike the answer. The plaintiff by cross-bill excepts to the rulings adverse to it.
The court passed the following final order and judgment: "This case comes again before the court upon two motions to strike. The first is a motion on behalf of the defendant to dismiss the plaintiff's petition as amended for the reason that it appears on the face of the pleadings that the plaintiff is not entitled to recover. The second is a motion on behalf of the plaintiff to dismiss defendant's answer as amended for the reason that it appears on the face of the answer as amended that no legal defense is interposed to the plaintiff's right to recover. The court has reread all the pleadings and given them careful study. The court is of the opinion that it cannot hold as a matter of law that the plaintiff's petition as amended shows no right of recovery. While it is true that the defendant makes certain admissions in its answer to definite paragraphs of the plaintiff's petition, which, if standing alone, might justify the granting of plaintiff's motion, these admissions are followed by other allegations which show that the two contracting parties put different interpretations upon the contract. The court held in its original ruling on the demurrers that the contract was ambiguous and that what was a proper interpretation of the contract was an issue of fact. It also held on its original order on demurrer that the plaintiff was bound to complete its collector line to its sewerage treatment plant within a reasonable time as none was specified in the contract, and that `a reasonable time' was a matter of fact for a jury. That the mere allegation and admission thereof by the defendant that it had knowledge through its engineer did not bind it to construct a temporary disposal sewerage system, if as a matter of fact it would not have had to construct one had the city completed its collector system to its sewerage treatment plant within a reasonable time. Therefore, the court is of the opinion that it cannot as a matter of law hold that the defendant's answer sets up no defense by way of recoupment to the plaintiff's alleged right to recover. The earnestness, vigor, and sincerity with which counsel for both sides argued their motions to strike convinces the court that they thoroughly believe in their positions. Therefore, if possible to give them an opportunity of direct appeal to a higher court, this court makes the following order: Upon consideration of the motion to dismiss the plaintiff's petition filed by the defendant January 23, 1959, and of plaintiff's motion to strike the defendant's answer filed January 27, 1959, and after carefully reviewing all of the pleadings in said case, it is considered, ordered, and adjudged by the court that it hereby reaffirms its order and opinion on demurrers signed the 9th day of October, 1958, and its order on demurrers signed January 14, 1959, and its order of January 14, 1959, dismissing defendant's plea of accord and satisfaction, and makes said orders part of this order. It is further considered, ordered, and adjudged, for the reasons above stated, that the defendant's motion to dismiss plaintiff's petition filed January 23, 1959, be and the same is hereby overruled on each and every ground therein stated. It is further considered, ordered, and adjudged that plaintiff's motion to strike the defendant's answer as not interposing a defense to plaintiff's petition be and the same is hereby overruled on each and every ground and all subdivisions thereof. In view of the above rulings, defendant's motion to strike plaintiff's motion to strike defendant's answer on the ground that it contains only special demurrers and are filed too late according to Section 81-301 of the Code of Georgia, is hereby overruled. In open court this 1st day of October, 1959."
1. The court did not err in overruling the motion to dismiss the action. The petition alleged full compliance with the contract by the plaintiff and does not show on its face that the obligation to construct a temporary sewage disposal system was the obligation of the plaintiff.
2. The court did not err in sustaining the demurrer to the defendant's plea of accord and satisfaction. The amended plea shows that that part of the defendant's obligation which was purportedly or otherwise paid in full was the obligation to pay for that part of the sewage and water system which was constructed within the subdivision. The correspondence between the two parties, resulting in the payment alleged to be in full, did not mention or involve the $8,700 sued for, covering the 87 house connections to the sewage plant. For this reason Rivers v. Cole Corporation, 209 Ga. 406 ( 73 S.E.2d 196) does not apply.
3. The court erred in overruling the general demurrer to the answer and those special demurrers directed at failure of the defendant to allege why and how the contract alleged by the plaintiff placed the obligation upon the plaintiff to build and pay for the temporary disposal system. The contract alleged is on its face unambiguous and nothing is alleged in the answer which would raise the question as to whether it was in fact ambiguous. The trial court based his ruling on the idea of an ambiguity in the contract and the failure of the plaintiff to perform its contract within a reasonable time. The court would have been correct in his ruling in these respects if the answer had contained any allegations to support the conclusions. If there was a latent ambiguity in the contract and the contract properly construed placed the duty of providing temporary sewage disposal facilities on the plaintiff the defendant could set up such a defense. Or, if the defendant was forced to provide temporary disposal facilities because the plaintiff did not perform its duties and obligations in the time provided, which in this case would be a reasonable time, since no time was stated in the contract, this fact could be pleaded as a defense. However, the answer contained no allegations to support the court's ruling and the court erred in overruling the general demurrer to the defendant's answer and the motion to dismiss the answer and erred in overruling the special demurrer to the answer which attacked the failure of the answer to allege how and why it was the obligation of the plaintiff to provide a temporary disposal system. The court deems it unnecessary to rule on the other exceptions to the rulings on special demurrers to the answer. If any of the questions arise by reason of future developments in the case no ruling not passed on shall be binding on the parties but shall remain open for adjudication.
The court did not err in overruling the motion to dismiss the petition. The court did not err in dismissing the plea of accord and satisfaction. The court erred in overruling the general and certain special demurrers to the answer and in overruling the motion to dismiss the answer.
Judgments on the main bill affirmed. Judgment on the cross-bill reversed. Nichols and Bell, JJ., concur.