Spalding Construction Co. v. Sternberg

Jenkins, P. J. (After stating the foregoing facts.) Under the rulings this day made in Spalding Construction Co. v. Simon, 36 Ga. App. 723, the petition as amended set forth a cause of action, and the court did not err in overruling the general demurrer. While the defendant would be liable for the damages resulting from its misapplication of the proceeds of the loan placed upon the property, and from its failure to complete the building according to the terms of the contract, it is not liable for the amount of the judgment rendered against the plaintiff on the note for $650, which, under the terms of the contract, the plaintiff himself was to discharge. Accordingly, the 6th ground of the demurrer should have been sustained. The remaining grounds of the demurrer are without merit. While the contract sued on contains a provision for the subsequent execution of a sale and building contract upon the plaintiff's delivery to the defendant of the notes provided for by the agreement sued on, and provides for the delivery of a warranty deed by the defendant to the plaintiff upon his complying with the sale and building contract, yet since it appears from the petition that the sale and building contract sued on is complete in all respects itself, and constitutes, of and within itself,, a full and complete sale and building contract, including plans and specifications for the building which was to be constructed, and is the contract under which the parties operated and under which both continued to operate, the petition must be understood to mean that no such additional superfluous agreement covering the same ground as the contract sued on had been executed, or was intended to be executed. Consequently, the petition was not demurrable for its failure to set forth any such additional agreement. Judgment affirmed. Stephens and Bell, JJ., concur.