Jerome Distributors, Inc. v. BLI Construction Company, Inc.

142 Ga. App. 776 (1977)

237 S.E.2d 13

JEROME DISTRIBUTORS, INC. v. B. L. I. CONSTRUCTION COMPANY, INC.

53908.

Court of Appeals of Georgia.

Submitted May 2, 1977.

Decided July 12, 1977.

Kaler, Karesh & Frankel, John R. Grimes, for appellant.

Harland, Cashin, Chambers, Davis & Doster, Harry L. Cashin, Jr., Thomas J. Venker, for appellee.

BELL, Chief Judge.

This is a suit in which plaintiff as subcontractor sought recovery for the balance due on a construction contract from defendant, the general contractor. The case was tried by the court. It was shown that Article X of the contract provided in part: ". . . Final payment shall be *777 made within 30 days after the completion of the work included in this sub-contract, written acceptance by the architect, and full payment therefor by the owner," and that defendant has not been paid by the owner. The court made findings of fact that the above clause was a condition precedent to payment by the defendant to the plaintiff, that it had not occurred and concluded that plaintiff may not recover for the amount claimed. A judgment for defendant was entered. Held:

1. Plaintiff complains that the judgment is contrary to law and unsupported by evidence because Article X of the contract does not meet the test of clarity, unambiguity and definiteness which is the proper test for determining the existence of a condition precedent under Georgia law. In Peacock Const. Co. v. West, 111 Ga. App. 604 (142 SE2d 332), we held an identical contract provision to be "plain and unambiguous" and a condition precedent to defendant's liability for the final payment of the contract price. Peacock controls. The evidence authorized the findings of fact, conclusions of law, and the judgment.

2. The other enumerations have no merit.

Judgment affirmed. McMurray and Smith, JJ., concur.