Imperial Inv. Co. v. Modernization Const. Co., 36836
| Decision Date | 18 September 1957 |
| Docket Number | No. 36836,No. 2,36836,2 |
| Citation | 100 S.E.2d 107,96 Ga.App. 385 |
| Parties | IMPERIAL INVESTMENT COMPANY, Limited, et al. v. MODERNIZATION CONSTRUCTION CO |
| Court | Georgia Court of Appeals |
Modernization Construction Company filed suit in the Civil Court of Fulton County against Imperial Investment Company in the sum of $13,783.65 for improvements rendered by the plaintiff to a building owned by the defendant, of which amount $8,639.30 was claimed as the balance due on the original written contract, in the sum of $64,123.35 and $5,144.35 as additional labor and materials furnished on request during the progress of the work, as shown by a bill of particulars comprising 32 items. Of these, plaintiff withdrew his claim to item 24, and defendant admitted owing the amounts shown in 16 items, leaving 15 disputed items. As to these, plaintiff testified that certain of them were the result of agreements which included the price, and others he made claim to by reason of certain work it was necessary for him to perform which was not listed in the original contract. The defendant, as to these 15 items, either denied they were necessary or claimed that they resulted from mistakes of the contractor or were included in the original contract. With the possible exception of one item in the amount of $104.70 the defendant did not contest the amount but denied that he was liable for the work done, either because it was unnecessary, because it was provided for by the contract in the first instance, or because it was rendered necessary because of mistakes on the part of the contractor. The defendant admitted he owed a balance of $8,639.30 under the original contract as alleged by plaintiff, but sought a set-off in the sum of $5,582.52 for improper performance, leaving an admitted liability of $3,056.78 as to the main contract. Defendant also admitted liability on 16 of the 32 change-over orders in the sum of $2,456.55, or a total admitted liability of $5,513.33. The jury returned a verdict for $11,874.55 in favor of the plaintiff, and it appears from examination of the evidence that this figure could only have been arrived at by the jury finding against the defendant's claim of set-off in its entirety, and finding for the plaintiff the balance due on the original contract, the extra items admitted, and in addition the sums charged for items 3, 5, 17, 22, 28 and 29 (as to all of which there was no issue as to amount, but only as to whether the item should properly be charged against the defendant at all).
The court charged the jury, using round numbers in some places by way of illustration, that they would have to return a verdict for the plaintiff which might be any figure between the total amount sued for by plaintiff and the amount admitted due by the defendant. He charged them that he had no intention of expressing any opinion in the case, and anything regarded by the jury as an intimation of opinion on the part of the court should be disregarded in its entirety. He then charged as follows, the italicized portion constituting the basis of the sole assignment of error urged in this court by plaintiff in error:
* * *' A Juror: The Court:
The denial of the amended motion for new trial is here assigned as error. The general grounds have been abandoned.
James K. Rankin, ...
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