Batson-Cook Co. v. Loden & Co., Inc.

• Decision Date: 13 July 1973
• Docket Number: No. 1,No. 48318,BATSON-COOK,48318,1
• Citation: 199 S.E.2d 591,129 Ga.App. 376
• Parties: COMPANY v. LODEN & COMPANY, INC
• Court: Georgia Court of Appeals

Page 591

199 S.E.2d 591

129 Ga.App. 376

BATSON-COOK COMPANY v. LODEN & COMPANY, INC.

No. 48318.

Court of Appeals of Georgia, Division No. 1.

July 13, 1973.

Syllabus by the Court

1. On an action by a subcontractor against a contractor for extra compensation based on the theory that extraordinarily rigid requirements by the architect and inspectors caused the plaintiff extra labor and expense in culling out bricks, a fact issue was presented as to whether the requirements accorded with or were higher than those in the general specifications. The evidence was sufficient to authorize a verdict in favor of the plaintiff.

2. A portion of the charge not excepted to in the trial court will not be considered by this court.

3. The testimony of the plaintiff's executive officer in charge of performance of the contract was properly admitted, the amount of damages was supported by proof, and the plaintiff was not precluded from prosecuting this claim because of failure to comply literally with certain provisions in the general contract relating to proof of claim.

The plaintiff Loden & Company, Inc. was a subcontractor of Batson-Cook Co., a general contractor employed by the City of Atlanta to construct the Lakewood Stadium, and, in particular as regards this lawsuit, to lay certain brick walls. Prior samples were offered for inspection. The parties were then informed by the architect that the sample was approved 'with the exception that several of the masonry units have been chipped, in violation of paragraph 4A-01F of the Specifications. We must notify you at this time that brick with chipped or damaged faces shall not be laid up on this project.' The defendant, referring to the architect's recommendation, then wrote the plaintiff who had forwarded and endorsed the decision: 'The contractor is advised to exercise the greatest care in selecting brick to be laid up in order that chips and deformations may be kept to a minimum on the fluted side. Several of the bricks shown in the sample had chips larger than will be accepted in the finished product. . . . Please be governed accordingly.' The plaintiff replied, pointing out that this would involve extra culling of bricks and would result 'in all probability in a surplus of brick which meet requirements of the specifications but which cannot be used in the wall nor returned to the factory. Furthermore, the extra time required to cull out these brick would cost us additional money in labor as well as the aforementioned material.' Defendant replied that 'you cannot take exception or deny responsibility in this case. The contract requirements have not changed, in that the face brick were originally specified to be laid with the back face exposed. We shall therefore expect you to continue to perform your contract in accordance with the contract documents.'

The architect who had written the original letter testified that he had been mistaken taken in informing the plaintiff that no chipped brick should be laid up; what he meant was chips larger than those allowed by the specifications. The plaintiff's job superintendent testified that the inspector insisted on 'no chips'; that inspections were rigid, that 500 to 1000 bricks had to be removed on account of chips, and that, to continue with the work, and meet inspections, all bricks had to be culled and those with more than very minimal chips discarded. Some 144,000 bricks were laid and rejects thrown out, lowered to the ground, restacked, rebanded, and returned to the warehouse. 35,400 bricks were culled out, although not all of these were rejected simply because of chips. A high percentage of the rejects, based on inspection requirements, met standard specifications.

The plaintiff made a claim for extra compensation to the defendant, which referred it to the owner and on its being rejected by the owner in turn refused to pay. This action was then filed, and the jury returned a verdict in favor of the plaintiff from which the defendant appeals.

Glover & Davis, Welborn B. Davis, Jr., Newnan, for appellant.

Archer, Patrick & Sidener, Griffin Patrick, Jr., Charles F. Reeves, East Point, for appellee.

DEEN, Judge.

1. The defendant contends that the verdict is not supported by evidence generally because (a) there is no evidence that the plaintiff performed extra work because there is no evidence of excessive chippage; (b) what work the plaintiff performed in this regard was demanded by the original contract specifications and was not extra work; (c) notice of intention to claim extra compensation was not given as required by the contract; (d) no monetary amount of damages was shown. As to the first two contentions, the evidence set out in the statement of facts is sufficient to raise a jury question as to whether or not the plaintiff was held...