Box 1, Folder 21, Document 46

Box 1, Folder 21, Document 46

CITY OF ATLANTA

DEPARTMENT OF LAW
2614 FIRST NATIONAL BANK BUILDING

ATLANTA, GEORGIA 30303 [os
a

September 9, 1969

Mr. A. P. Brindley
Parks Engineer
Department of Parks
City of Atlanta
Atlanta, Georgia 30303









Dear Mr. Brindley:

I have in hand a copy of the R & G Construction
Company to you dated August 25, Without restating the
contents of th the whole reference to paragraph 3
thereof which reads 4

rains Aifeady this i I realize that this is abnomel

but mctinue to re-plent these areas due to
an Ac W) turf has been established in these
areas : SCiesting dese ont gseeur Gintn Semk, ¢
think biex grass to eventually cover these
areas. Ay Mir. Nations looked at this with us and
made note of same,’

The letter itself ia somewhat wocertain as to whether or not the
wong gl Plea Big ne ose Span Pagal gers Set
rig Pe hh ng again should it rain again. In either event,
Se on ag pew Stehas oie cratatiens Loman aad




To begin with, I have before me the contract between R & G
Construction Company and the City of Atlanta dated November 25,
1968, which covers the subject matter of the letter.

The contract is silent on the specific subject of the inquiry
raised in the letter, although certain portions of the general
conditions (paragraphs 11, 12, 17, 18, 20 and 22) support the
proposition that the Contractor is entitled to no additional
compensation.

Inasmuch as there are no Georgia cases specifically on the point,
we must refer to the general law to determine whether or not

the facts set forth in the letter are sufficient to either (1)
authorige the Contractor to take the position that there is an
impossibility of performance of (2) to authorize additional
compensation for the Contractor,

To begin with, ". . . (1)t hae generally been deemed clear that
any unprecedented flood or sudden inundation which no human

power could stay and no foresight or prudence could anticipate

is an ‘act of God.’ * 1 Am Jur 2d p. 680. Therefore, there is
some question in my mind as to whether or not this is in fact

an act of God, Im addition to the above general proposition of
law, there is another legal proposition which I feel is presented
in this case and which answers the question adversely as to the
position of the Contractor. This proposition is as follows:

“The question whether nonperformance is excused or
the person who must bear the loss where parformance has
been made more difficult or expensive by an act of God
must be distinguished from the question whether nonper-
formance is excused where performance is made impossible
by such cause. Where an dnconditional contract is te do
a thing which is poesible in itself, the nonperformance
is not excused by an act of God, Performance of an
express contract is not excused by the occurrence, after
the contract was made, of an unforeseen event beyond the
control of the contracting party except when the unfore-
seen event renders performance of the contract impossible.


Accordingly, even in a jurisdiction where an act of God
may excuse the nonperformance of a contract, it must
appear, to bring the case within that principle, that

the thing to be done cannot by any means be accomplished."
1 Am Jur 2d p. 684.

I am answering this question in a legal context; however, I
feel that there might be some area here for equitable adjust-
ment. To this end, I am requesting that you contact the
architect, lay the problem before him and ask him what
normally is done in similar circumstances,

If I can be of any further assistance to you in this matter,
please feel free to call upon me. I return herewith the
contract above referred to,
Very truly yours,
Te

Thomas F, Choyce
Associate City Attorney

TFC/ip

ce: Jack C. Delius
Honorable Ivan Allen, Jr.

Enclosure