Barber v. Atlas Concrete Pools, Inc., 59887

• Decision Date: 30 June 1980
• Docket Number: No. 59887,59887
• Citation: 155 Ga.App. 118,270 S.E.2d 471
• Parties: BARBER v. ATLAS CONCRETE POOLS, INC.
• Court: Georgia Court of Appeals

Page 471

270 S.E.2d 471

155 Ga.App. 118

BARBER v. ATLAS CONCRETE POOLS, INC.

No. 59887.

Court of Appeals of Georgia.

Submitted May 12, 1980.

Decided June 30, 1980.

Robert A. Blackwood, III, Peachtree City, for appellant.

Asa M. Powell, Jr., Newnan, for appellee.

CARLEY, Judge.

Appellant Barber, defendant below, entered into a contract with appellee for the construction of a swimming pool. Almost immediately after appellee began excavation a rock formation was struck and work halted. A second site was chosen and appellee was able to excavate to a depth of approximately five feet before striking rock again. The contract made provision for this event, requiring that appellant would absorb any additional cost plus 20% should rock or other material be encountered which could not be removed other than by drilling or blasting. Because of the rock a pool of the dimensions specified in the instant contract could not be constructed without the extra expenses. In subsequent discussions between appellant and appellee, appellee offered to complete the project as originally contemplated with appellant incurring the additional expense. Appellee also proposed in the alternative that, with no added charges, it would construct the pool without the diving area envisioned by the initial plans. Appellant rejected both proposals and considered the contract to be terminated. Thereafter, a problem arose out of the alleged wrongful detention of appellee's construction equipment by appellant. Appellee filed a complaint which included prayers for injunctive relief and sought damages sustained as a result of alleged breach of contract and wrongful retention of property and punitive damages. Prior to any hearing on the equitable issues, appellant allowed appellee to retrieve its equipment. At trial, only general damages were submitted to the jury and a verdict of $5,000 in favor of appellee was returned. Appellant brings this appeal, asserting two enumerations of error both of which are concerned with the trial court's denial of appellant's motion for directed verdict at the close of the evidence for appellee.

1. Appellant's first enumeration of error urges that the trial court erred in denying his motion for directed verdict based upon the fact that the evidence showed the contract has been terminated, thus, precluding damages for breach of contract. Mutual consent of both parties to a contract is necessary before there can be a rescission. Central of Ga. R. Co. v. Gortatowsky, 123 Ga. 366, 375, 51 S.E. 469 (1905); Cotterill v. Hopkins, 180 Ga. 179, 178 S.E. 444 (1934). While there was ample evidence in the case at bar that appellant considered the contract cancelled or rescinded, there is also some evidence that appellee considered the contract to be binding and enforceable and some evidence that appellant breached the same. "It is the law of this state that evidence strongly supporting but not demanding a particular finding does not warrant a directed verdict. (Cits.)" Speir v. Williams, 146 Ga.App. 880, 247 S.E.2d 549 (1978). Since there was some evidence supporting appellee's contentions as to the existence of a valid contract and as to the subsequent breach thereof by appellant, disputed issues were...