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ASA WARREN CANDLER POST NO. 65, AMERICAN LEGION, INC. v. GREGSON et al.
35323.
Breach of contract. Before Judge Vaughn. DeKalb Superior Court. May 27, 1954.
FELTON, C. J.
1. Where the petition, in an action by architects for the value of architectural services rendered, fails to allege that the plaintiffs have complied with Code (Ann.) 84-302, regulating the practice of architecture, the petition is subject to a general demurrer. The court erred in overruling the general demurrer.
2. The court erred in overruling the objection to the amendment alleging the reasonable value of the plans furnished the defendants under the facts of the case.
Wilfred J. Gregson and David T. Ellis, partners doing business as Gregson & Ellis, sued Asa Warren Candler Post No. 65, American Legion, Inc., to recover damages for the alleged breach of an express contract, by the terms of which the plaintiffs were to draw plans for a proposed new building in Brookhaven, Georgia, and to supervise the erection of the building. On the trial the plaintiffs amended their petition by striking the count based on a breach of an express contract and substituted an action based on the breach of an implied contract. The amended petition, among other things, alleged: "11. Defendant is indebted to plaintiffs in the sum of thirty-six hundred ($3,600) dollars principal plus interest at the rate of seven (7%) percent per annum since May 1, 1949, by reason of the facts set forth below. 12. On or about February 10, 1949, defendant, acting by and through his agent and servant, Loring G. Henderson, contacted plaintiffs relative to proposed new headquarters building for defendant in Brookhaven, Georgia. 13. Henderson requested plaintiffs to prepare plans and sketches for such proposed new building. 14. Plaintiffs did prepare such plans, colored perspective drawing, and preliminary sketches of said proposed building, copies of which perspective drawing and preliminary sketches are attached hereto as Exhibit A. 15. Said perspective drawing and preliminary sketches were original with plaintiffs and constituted plaintiffs' intellectual production. 16. Thereafter plaintiffs exhibited said preliminary sketches and perspective drawing to defendant, its officers, agents and membership. 17. Petitioners attended conferences with defendant's officers concerning the sketches and plans and at the request of defendant's commander, Loring G. Henderson, revised the plans to suit the site upon which the hall was ultimately built. 18. Thereafter defendant acting through Loring G. Henderson, advised petitioners that defendant had decided to dispense with the services of an architect. 19. Defendant then proceeded to build its post headquarters hall, using petitioners' original sketches and original plans which petitioners had previously submitted to defendant . . . 23. Such original ideas, drawings, sketches and perspective plans had a reasonable value of thirty-six hundred ($3,600) dollars and were worth that amount to defendant. 24. Defendant's headquarters hall has been completed, using petitioners' ideas and plans in its design."
The defendant filed general and special demurrers. The general demurrer and various special demurrers were overruled, and one special demurrer was sustained (among others about which no question is raised) by one of the judges of the court. The special demurrer to paragraph 23 of the amendment was sustained and the paragraph was stricken. The special demurrer to paragraph 23 is as follows: "Defendant demurs to paragraph 23 on the ground that the allegation of 'worth' is a conclusion and opinion of the pleader." At the succeeding term of the court, the following amendment to the petition was allowed by the other judge of the court subject to demurrer: "Plaintiffs show that the plans and drawings furnished defendant had a reasonable value of $3,600." The defendant's objection to the allowance of this amendment, on the ground that the judgment of the judge sustaining the demurrer to paragraph 23 was the law of the case, was overruled. The jury found for the plaintiffs in the sum of $2,000. The defendant's amended motion for a new trial was denied, and the defendant excepts to that judgment and to the overruling of its general and special demurrers.
1. The court erred in overruling the general demurrer to the petition. Construing the petition and exhibits thereto against the plaintiffs, it necessarily alleges that the plaintiffs were architects and that they were acting as such in their dealings with the defendant. Paragraph 18 of the amended petition alleges: "Thereafter defendant, acting through Loring G. Henderson, advised petitioners that defendant had decided to dispense with the services of an architect." On some of the drawings submitted by the plaintiffs are the words, "Gregson & Ellis, Architects." The petition fails to allege compliance with Code 84-302, and was for this reason fatally defective. Cline v. Crane, 90 Ga. App. 192 (82 S. E. 2d 175); Mayo v. Lynes, 80 Ga. App. 4 (2) (55 S. E. 2d 174); Brown v. Glass, 46 Ga. App. 323 (167 S. E. 722). It was permissible to substitute an action on implied contract for an action for the breach of an express contract. Kraft v. Rowland & Rowland, 33 Ga. App. 806 (2) (128 S. E. 812); Southern Ry. Co. v. Campbell Coal Co., 41 Ga. App. 83 (1) (151 S. E. 661); Bartow Guano Co. v. Adair, 29 Ga. App. 644 (1) (116 S. E. 342).
2. The court erred in allowing the plaintiff's following amendment at the 1953 December term of the court: "Plaintiffs show that the plans and drawings furnished defendants had a reasonable value of $3,600," for the reason that at the November term, 1953, the court sustained a demurrer to paragraph 23 of the petition and ordered it stricken. McCandless v. Conley, 115 Ga. 48 (41 S. E. 256). No motion was made at the November term to alter, revoke, or modify the November term judgment sustaining the demurrer to paragraph 23 and striking it in its entirety.
The court erred in overruling the general demurrer to the petition and in overruling the objection to the amendment shown above. There is no merit in the other exceptions to rulings on special demurrers. These errors rendered further proceedings nugatory.
Judgments reversed. Quillian and Nichols, JJ., concur.
Hamilton Douglas, Jr., Ross Arnold, contra.
Sams, Wotton & Sams, for plaintiff in error.
DECIDED OCTOBER 14, 1954 -- REHEARING DENIED DECEMBER 7, 1954.
Saturday May 23 03:23 EDT


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