Kent v. Hunt & Associates, Inc.
Decision Date | 05 January 1983 |
Docket Number | No. 64827,64827 |
Citation | 165 Ga.App. 169,299 S.E.2d 123 |
Parties | KENT v. HUNT & ASSOCIATES, INC. et al. |
Court | Georgia Court of Appeals |
J. Walter Owens and L.B. Kent, Columbus, for appellant.
Joey M. Loudermilk, Columbus, for appellees.
Appellant-plaintiff hired appellee-defendant to construct a building to be used as appellant's law office. After construction began, disagreements arose between the parties and the situation became strained. Subsequently, appellee was locked off the job by appellant and was thereby prevented from further work on the project. Appellant sued, alleging breach of contract, negligent construction, malicious abuse of process, fraud and conversion of personal property. Appellee answered the complaint and, in addition, filed a counterclaim, which, as amended, sought only damages for breach of contract. After a jury trial, a verdict was returned in favor of appellee in the main action and on the counterclaim, the verdict on the counterclaim being in the amount of $20,822.71. Appellant appeals from the judgment entered on the verdicts.
1. Appellant enumerates as error the charge given by the trial court on damages recoverable by a contractor when the contract of construction is wrongfully breached by the owner. Appellant contends that this charge, which was taken directly from this court's decision in Williams v. Kerns, 153 Ga.App. 259, 265 S.E.2d 605 (1980), was not supported by the evidence. However, the record shows that appellant also requested the very same charge. Sarman v. Seaboard Air-Line Ry. Co., 33 Ga.App. 315, 321, 125 S.E. 891 (1924). Appellant's first enumeration of error is without merit.
2. Appellant enumerates as error the denial of his motion for directed verdict as to appellee's counterclaim. Appellant specifically asserts that appellee failed to prove the amount of damages allegedly sustained. Our review of the transcript reveals that appellee did offer specific evidence of damages incurred. Jones v. Smith, 160 Ga.App. 147, 148, 286 S.E.2d 478 (1981). There being evidence to support the verdict returned by the jury, the trial court did not err in denying the motion for directed verdict. Curl v. First Federal Savings and Loan Association of Gainesville, 243 Ga. 842(1), 257 S.E.2d 264 (1979).
3. Appellant further enumerates as error the trial court's charge that "... if you find that the [appellee] has fully complied with his obligation under the contract both as to the materials used and the manner of doing the work, he is not to be accountable for unsatisfactory results." Such a charge is a correct statement of the law. Bettis v. Comfort Control, Inc., 115 Ga.App. 104, 105, 153 S.E.2d 678 (1967). Furthermore, there is evidence that, although there were defects in the building, appellee complied with the plans and specifications of the contract. The challenged charge was correctly given in this case.
4. Next, appellant asserts that the trial court erred in giving the following charge: The charge is essentially a correct statement of the law of substantial performance. See Allied Enterprises v. Brooks, 93 Ga.App. 832, 834(3), 93 S.E.2d 392 (1956). Furthermore, the charge is not "argumentative" and clearly makes allowance to the owner for defects or deviations in performance. The charge was not erroneously given.
5. Appellant next enumerates as error the charge given by the trial judge that "where a party prevents the performance of a stipulation of a contract undertaken by the other party, he is estopped from setting up in his own behalf any injury which may have resulted from the nonperformance of such condition." The charge is a correct statement of the law. Allied Enterprises, 93 Ga.App. at 834(3), 93 S.E.2d 392, supra. There is evidence in the record that appellee was locked off the job by appellant. The trial court did not err in giving this charge.
6. Appellant further enumerates as error the denial of his motion for directed verdict as to his claim for conversion of a tractor. The evidence shows that the appellee lawfully acquired possession of the tractor in question. There is considerable evidence creating an issue of fact as to whether it was the intent of the parties to transfer title to appellee at the time he took possession of the tractor. There was no error in denying appellant's motion for directed verdict. Kornegay v. Thompson, 157 Ga.App. 558, 278 S.E.2d 140 (1981).
7. Appellant enumerates as error the court's ruling that, under the provisions of the contract, appellee could recover...
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...to materials used and the manner of doing the work, he is not to be accountable for unsatisfactory results.' " Kent v. Hunt & Assoc., 165 Ga.App. 169, 170, 299 S.E.2d 123 (1983). As I construe the "passive concealment doctrine," if there is a negligent disregard of the defendant-builder's d......
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