Crolley Et Al. v. Haygood Contracting, Inc., 201 Ga. App. 700, 411 S.E.2d 907 (1991)
Linked as:
Text
Bovis, Kyle & Burch, C. Sam Thomas, for appellants.
Haygood Contracting, Inc. filed suit against Cherokee Falls Investments, Inc. (CFI) and William L. Crolley to recover amounts allegedly owed on a construction contract. CFI answered and filed a counterclaim arising from another construction contract, and Crolley filed an answer denying individual liability. The trial court granted partial summary judgment against Crolley and CFI, and they appeal.
This dispute arises from a contract executed on July 6, 1989 for paving work to be performed by appellee at Chota Hills Subdivision in Cherokee County. The contract comprises a standardized form prepared by appellee with the owner's name, scope of work, and contract price typed in blank spaces on the form. The name "Chota Hills Subdivision" appears in the blank spaces designated for "proposal submitted to" and "job name." The contract was signed by appellant Crolley with no indication of corporate office or title. Appellant CFI's name does not appear on the form. Crolley testified by deposition that he is a majority stockholder and director of CFI, a corporation engaged in the business of buying and selling real estate, and that Chota Hills Subdivision is a residential subdivision owned by CFI. He deposed that he executed the contract at issue on behalf of CFI. Conversely, Scott Coile, appellee's superintendent, deposed that he understood appellee was dealing with Crolley personally.
The contract form specified a price of $29,345 for the work. In October 1989, Crolley and Coile discussed the need for additional work to be performed because of poor soil conditions in some areas of the roadway. Coile testified that he prepared a handwritten estimate indicating that this work would cost $7,275, which Crolley admits initialling on October 6. On the copy of this document entered in the record, there appear below Crolley's initials additional notations delineating $500 for "equipment time" and $7,560 for "extra stone." Coile deposed that these notes were added by appellee's office staff after Crolley initialled the document.
After the parties became embroiled in a dispute over the quality of appellee's performance and the liability of appellants for the extra work, appellee filed this action to recover the contract price plus all amounts shown on the above-referenced document for additional work. The trial court granted partial summary judgment against both appellants for the original contract price, $29,345, plus $7,275 for extra work.
1. Appellants contend the trial court erred by awarding appellee $7,275 for extra work because the contract required a written change order and a fact question remains concerning appellants' authorization of this work and their waiver of the written change order requirement. This enumeration is without merit, as the handwritten proposal prepared by appellee's representative and initialled by appellant Crolley described the work to be performed and stated a sum certain for the performance of the work, and accordingly satisfied the contract change order requirement.
2. Appellants next maintain the grant of summary judgment to appellee on the contract claim was erroneous because it ignored CFI's pending counterclaim. We agree with appellants that the decision in Mock v. Canterbury Realty Co.,
3. Finally, appellant Crolley contends the trial court erred by finding him individually liable to appellee, arguing that a fact question remains concerning whether he executed the contract in his representative capacity. Both parties have cited cases decided under Article 3, Section 3-403 of the Uniform Commercial Code (OCGA
Appellant Crolley contends that "Chota Hills Subdivision" is a trade name of CFI, and thus the presence of this CFI trade name on the face of the contract created a fact question concerning whether the principal, CFI, was disclosed to appellee. " 'Where an agent wishes to avoid personal liability, the duty is on him to disclose his agency, and not on the party with whom he deals to discover it' . . . . [Cits.]" Brown-Wright &c. Corp. v. Bagen,
We agree with appellee that the contract at issue was not made under any circumstances that would give rise to a fact question concerning disclosure to appellee of an agency relationship between Crolley and CFI. There is nothing on the face of the contract to suggest that "Chota Hills Subdivision" was a trade name used by CFI rather than by Crolley, the person who signed the contract. Compare Fletcher Emerson, supra (summary judgment for plaintiff not authorized where wording of trade name suggested representative capacity and there was circumstantial evidence of disclosure of principal). Similarly, there is no evidence the alleged trade name at issue was registered by CFI under OCGA
Nonetheless, we agree with Crolley that the entry of judgment against both him and CFI is impermissible. "[O]ne who deals with an agent who fails to disclose his principal 'may recover from the agent, where he so elects, or he may proceed against the principal, when made known, should he not elect to proceed against the agent.' [Cits.]" Brown-Wright, supra at 302. Since CFI has admitted it was the principal and has conceded liability under the contract, appellee must make an election between Crolley and CFI. Accordingly, we vacate the judgment with direction that the trial court enter partial summary judgment against one of the appellants at the election of appellee.
Roach, Hasty & Geiger, Thomas A. Roach, Jr., William G. Hasty, Jr., for appellee.
Sponsored links
