Holder v. J. F. Kearley, Inc.
| Decision Date | 29 April 1980 |
| Docket Number | No. 59254,59254 |
| Citation | 267 S.E.2d 266,153 Ga.App. 843 |
| Parties | HOLDER et al. v. J. F. KEARLEY, INC. |
| Court | Georgia Court of Appeals |
Richard N. Hubert, Atlanta, for appellants.
Thomas J. Wingfield, III, Atlanta, for appellee.
On or about July 27, 1976, Aubrey E. Holder and Nan L. Holder entered into a contract with J. F. Kearley, Inc., whereby Kearley was to construct a dwelling house on the Holders' property. The owners agreed to pay the contractor $4,000 ($1,000 per month for four months, the last $1,000 to be paid only after all the work was completed) and the contractor agreed that the cost of the work and the contractor's fee was guaranteed not to exceed $51,860, to be increased or decreased in accordance with changes in the work. The owners from time to time might issue written instructions or drawings to the contractor making changes therein, and the contractor was to be reimbursed for such changes in the work on the basis of the cost of the work which had been budgeted in arriving at the guaranteed maximum cost.
The contractor contended that the Holders owed it the sum of $12,171.32 on the house which became due on June 5, 1977. A claim of lien for this amount was filed on August 12, 1977.
On May 31, 1978, the contractor, as plaintiff, sued the Holders, as defendants, in three counts, contending in Count 1 that the parties had mutually departed from the contract by mutually disregarding the provisions calling for written orders for extra work. As a result of the substantial increase from the changes and extras the cost of the work performed by plaintiff was increased to $59,618.17 and when added to the $4,000 fee to which plaintiff was entitled defendants became obligated to the plaintiff in the sum of $63,618.17. Defendants had paid $51,446.85, leaving a balance due of $12,171.32 "plus interest since the date that amount came due, June 1, 1977." In Count 2, plaintiff sought judgment for this amount for services rendered, that is, labor, equipment, and material, in which defendants had benefited through the construction of the dwelling on the real property. In Count 3, plaintiff sought foreclosure of the lien within 12 months of the date it became due seeking a personal judgment in the amount of $12,171.32 plus interest and a special judgment against the property by reason of the foreclosure of this lien. Plaintiff attached a copy of the claim of lien, the alleged contract, and a summary of the changes in labor and material which resulted from the instructions and authorizations of the defendant Aubrey E. Holder. This summary of the changes shows the extra cost to be $12,154.
The defendants answered, admitting jurisdiction, the execution of the contract for the construction of the dwelling on their property with the plaintiff corporation but otherwise denying the claims of the plaintiff. In addition, they filed a counterclaim in two counts, seeking damages in Count 1 in the sum of $5,000 by reason of plaintiff's failure to construct the house in a workmanlike manner; and, in Count 2, for damages contending the construction of the house had been completed more than three months before the filing of the lien, and they had been damaged in the amount of $15,000 by reason of the erroneous lien being wrongfully filed against the property.
After discovery the case proceeded to trial in which the contract and plans were admitted in evidence, as well as plaintiff's summary of the changes, without objection on the part of the defendants. Plaintiff's other exhibits were finally admitted over the objection of the defendants' counsel. After the completion of the trial in which the court directed a verdict against the defendants as to their counterclaim, the jury returned a verdict in favor of the plaintiff in the amount of $12,171.32, granting a lien on defendants' property and awarding interest at 7% from June 15, 1977. The judgment followed the verdict. A motion for new trial was filed, amended, and after hearing, was denied. Defendants appeal. Held :
1. It is noted here that defendants never objected to the admission of the testimony of the corporate president of the plaintiff nor to the admission in evidence of the contract and the summary of the changes attached to the petition. The admission into evidence of testimony without objection cannot be grounds for error on appeal. Meeks v. Meeks, 209 Ga. 588(1), 74 S.E.2d 861. Even an otherwise valid objection is waived unless timely made at trial. Atlanta Enterprises v. James, 68 Ga.App. 773, 775, 24 S.E.2d 130; Knox Metal Products v. Watson, 100 Ga.App. 832, 834, 112 S.E.2d 295.
2. The evidence was sufficient to support the verdict both as to the money judgment and the special judgment as to the lien; and the general grounds of the motion for new trial are not meritorious. Northcutt v. Crowe, 116 Ga.App. 715, 717, 158 S.E.2d 318, and cases cited therein. See also Sears, Roebuck & Co. v. Superior Rigging, etc., Co., 120 Ga.App. 412, 413(1), 170 S.E.2d 721.
3. No objection was made to the admission in evidence of the exhibits showing a summary of the overages and credits with reference to the alleged extra costs over the guaranteed maximum sum to be spent, although plaintiff offered...
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Forsyth Cnty. v. Mommies Props. LLC
...also allowed Petitioner to submit evidence over the County's objections in several instances. See Holder v. J. F. Kearley, Inc. , 153 Ga. App. 843, 845 (5), 267 S.E.2d 266 (1980) (Under Georgia law, whether to reopen the evidence after both parties have rested is a matter committed to the t......
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...306, 310, 363 S.E.2d 834 (1987); Kuhlke Constr. Co. v. Mobley, Inc., 159 Ga.App. 777, 285 S.E.2d 236 (1981); Holder v. J.F. Kearley, Inc., 153 Ga.App. 843, 846, 267 S.E.2d 266(1980); cf. Pinnacle Constr. Co. v. Osborne, 218 Ga.App. 366, 367(2), 460 S.E.2d 880 (1995) (suit to correct contrac......
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Adamson Co. v. Owens-Illinois Development Corp.
...Generally, the proper measure of damages for defective workmanship would be the cost of repair of the defect. Holder v. J.F. Kearley, Inc., 153 Ga.App. 843, 846(6), 267 S.E.2d 266. Compare, Accent Walls, Inc. v. Parker, 162 Ga.App. 633(1), 634, 292 S.E.2d 509, supra; Hospital Auth. of Charl......
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