Graham Bros.' Const. Co., Inc. v. C. W. Matthews Contracting Co., Inc., 62062

• Decision Date: 14 September 1981
• Docket Number: No. 62062,62062
• Citation: 284 S.E.2d 282,159 Ga.App. 546
• Parties: GRAHAM BROTHERS' CONSTRUCTION COMPANY, INC. v. C. W. MATTHEWS CONTRACTING COMPANY, INC.
• Court: Georgia Court of Appeals

Page 282

284 S.E.2d 282

159 Ga.App. 546

GRAHAM BROTHERS' CONSTRUCTION COMPANY, INC. v. C. W. MATTHEWS CONTRACTING COMPANY, INC.

No. 62062.

Court of Appeals of Georgia.

Sept. 14, 1981.

H. Dale Thompson, Dublin, Aubrey L. Coleman, Jr., Atlanta, for appellant.

Paul J. Jones, Dublin, William T. Gerard, Athens, for appellee.

McMURRAY, Presiding Judge.

On July 7, 1975, C. W. Matthews Contracting Company, Inc., and Gentry & Thompson, Inc., entered into a contract with the Georgia Department of Transportation for the relocation around the Atlanta airport of a portion of Interstate Highway 85 and to perform, among other items, 4.039 miles of grading. The contract was for more than $13 million. Matthews, as prime, then entered into a written subcontract agreement with "Graham Brothers," as subcontractor, in the amount of $933,642.10 to perform certain items of the bid such as "Clear & Grub" for $33,000; "Unclass. Excav., Incl. Haul," for $897,293.10, and "Subgr Stab. Aggr. TP. II," for $3,349, with certain clarification notations incorporated with reference to these items. The contract provided, among other things, for payment for the actual work performed to the satisfaction of the prime and/or owner to the extent of payments actually received by "Prime from Owner," less a retainage in addition to any withheld by the owner; and to complete the work not later than "same as prime" and to maintain such rate of progress in performance of said work so as not to impede the prime or any other subcontractor in the performance of the work; and the quantity of the work contracted "may be increased or decreased in the same manner as provided in the Contract between Prime and Owner."

Graham contends that there were certain oral modifications as to the subcontract even before the work began which were not reduced to writing nor reflected in the written contract and that there was no agreement as to the time duration it would stay on the job nor as to the quantity of dirt it would move. However, as above stated, the subcontract in paragraph 7 stated that the work would be completed "not later than same as prime ['same as prime' typed into a blank space in the contract]," and the quantity of work might be increased or decreased "in the same manner as provided in the Contract between Prime and Owner." Sometime between January 30, 1976, and March 1, 1976, after partial completion of the contract, Graham left the project contending that there was an agreement with Matthews that if Graham would sell Matthews certain equipment that Matthews would not hold Graham liable for any extra costs on this project. Matthews did buy $210,000 worth of equipment from Graham in March, 1976, but Matthews disputes the claimed oral side agreements to the contract and the oral agreement regarding permission for Graham to leave the project sometime in February, 1976. It contends that on March 17, 1976, it notified "Graham Brothers Construction Co., Inc.," that it was in default under the terms of the contract based upon the fact that it had ceased operations and was removing its equipment from the project, having advised Matthews that it was financially unable to continue operations and was abandoning the job. Hence, under the terms of the contract, Matthews was taking over the job and completing the remainder of the work, subcontracting it and retaining all monies due under the contract, as well as any due under other contracts whether with Matthews or affiliated companies with Matthews and that it would attempt to complete the work economically as able but that it would look to the subcontractor "for any deficiency that may exist upon completion."

On January 27, 1977, Matthews sued Graham Brothers Construction Co., Inc., seeking recovery in the amount of $320,594.31 after credit against their damages for breach of the written subcontract. Plaintiff contended that defendant Graham, after performing part of the contract "continued work under said subcontract until February, 1976," thereafter ceasing operations and abandoning the job in February, 1976, thus breaching the terms and conditions of the contract.

Defendant Graham answered, admitting execution of the subcontract, part performance, contending it withdrew by agreement after selling part of its equipment to the plaintiff and otherwise denied the claim, contending further that it was entitled to an accounting and sought recovery from the plaintiff of an additional $150,000. Plaintiff Matthews then, by four separate amendments, changed the amounts due under the breach; and again after the pre-trial set up a different amount claimed, the court orally granting plaintiff permission to amend the pre-trial order to claim $510,600.53 (including interest). However, in the closing argument plaintiff's counsel referred to the figure $327,469.15 in damages, and the court in its charge stated that the plaintiff sought damages in the amount of $429,062.32 ($429,056.32, the amended figure.). The jury then returned a verdict for the plaintiff in the amount of $317,222.69, and judgment was entered accordingly. Defendant then filed its motion for new trial, amended same, and after a hearing, it was denied. Defendant appeals. Held :

1. Both the pleadings and the pre-trial stipulations established that defendant commenced performance under the subcontract and continued work until "February, 1976." However, both a discovery deposition and testimony at trial was that work under the subcontract continued during the month of February, 1976, and plaintiff moved for modification of the pre-trial order to prevent manifest injustice in order that it be allowed to show evidence as to the exact date of the breach of the contract. Whereupon defendant moved for a mistrial when the trial court, during the trial, permitted the plaintiff to withdraw this pre-trial stipulation as to the time of the alleged breach or defendant's departure from the job after the stipulations had been read to the jury. Under the authority of the provisions of Code Ann. § 81A-116 (Ga.L.1966, pp. 609, 628; 1967, pp. 226, 231; 1968, pp. 1104, 1106), a pre-trial order may be "modified at the trial to prevent manifest injustice." We find no reversible error in the trial court's denying the motion for mistrial after allowing the modification. Nor do we find any merit in the complaint that the trial court erred in denying the motion for continuance or postponement to allow defendant to prepare for the change. The continuance motion was overruled for the time being, the court stating that after the close of plaintiff's evidence if defense counsel needed additional time, "then you may apply for it then." Counsel for the defendant thereafter made no such request for further continuance or postponement, and we find no abuse of discretion on the part of the trial court as we find no great material changes in the allowance of the amendment, nor in denying the motion for continuance. See Code §§ 81-1419, 81-1420; Walton v. Walton, 223 Ga. 85(2), 86, 153 S.E.2d 554; Benjamin v. Weintraub, 169 Ga. 770, 775, 151 S.E. 381. These enumerations of error are not meritorious.

2. Defendant next enumerates error as to certain repetitious written requests by the plaintiff which were given in the court's charge, citing Gates v. Southern R. Co., 118 Ga.App. 201, 203-204(3), 162 S.E.2d 893. We do not find the written requests given by the court as being subject to the criticism that they were unduly repetitious. Such charges were based upon Code §§ 20-1402, 20-1409, and 20-1407, and the charge as given was explanatory of damages contemplated by a breach of contract. A reading of the court's entire charge does not show that it was totally one-sided in favor of the plaintiff as complained of by the defendant. There is no merit in this complaint.

3. Defendant's next contention is that the trial court erred in failing to give a written request that there had been a mutual disregard of the written contract which required subsequent notice from plaintiff to the defendant if plaintiff later intended to enforce the exact terms of the agreement. However, this written request was withdrawn by the defendant, and it cannot now insist that the principles of its request to charge were applicable to the case. See Carter v. Pruitt, 235 Ga. 204, 219 S.E.2d 114. The defendant having adopted the previous withdrawal of its written request did not thereafter object to the omission of this request from the court's charge and cannot now complain. See Code Ann. § 70-207(a) (Ga.L.1965, pp. 18, 31; 1966, pp. 493, 498; 1968, pp. 1072, 1078); Imperial Massage etc., Studio v. Lee, 231 Ga. 482(1), 202 S.E.2d 426; Dodd v. Dodd, 224 Ga. 746, 164 S.E.2d 726; Love v. Savannah Electric etc., Co., 149 Ga.App. 747, 748(3), 256 S.E.2d 112.

4. Defendant's next complaint is that the trial court's failure to give its written request No. 7 in full was in error. However, this charge was given in substance by the court with reference to damages recoverable for a breach of contract as being those that, "arise naturally and according to the usual course of things from such breach," and "such as the parties contemplated when the contract was made as the probable result of its breach," and thereafter, the substance of Code § 20-1406, including the phrase, "unless they are capable of exact computation." See Sanford-Brown Co. v. Patent Scaffolding Co., 199 Ga. 41, 43, 33 S.E.2d 422; Darlington Corp. v. Evans, 88 Ga.App. 84, 90, 76 S.E.2d 72; Jackson v. Miles, 126 Ga.App. 320, 321(2), 190 S.E.2d 565; Hardwick v. Price, 114 Ga.App. 817(3), 152 S.E.2d 905. Thus, the court, in substance, gave ...