McClelland v. Carmichael Tile Co.

• Decision Date: 20 November 1956
• Docket Number: No. 36438,No. 2,36438,2
• Citation: 96 S.E.2d 202,94 Ga.App. 645
• Parties: D. W. McCLELLAND et al. v. CARMICHAEL TILE COMPANY
• Court: Georgia Court of Appeals

Page 202

96 S.E.2d 202

94 Ga.App. 645

D. W. McCLELLAND et al. v. CARMICHAEL TILE COMPANY.

No. 36438.

Court of Appeals of Georgia, Division No. 2.

Nov. 20, 1956.

Rehearing Denied Dec. 5, 1956.

Syllabus by the Court

Although the plaintiffs in their petition to recover compensation for the completion of their contract with defendant pleaded that they were to provide certain described improvements in connection with the erection of a building 'the said work consisting of all the tile work in connection with the construction and completion' of said building, and although the evidence disclosed that there was other work of the same nature in connection with the construction of the building with which the defendant was in no way concerned (such other work being the subject of a contract between the plaintiff and a third person), this discrepancy between the pleading and the proof was such as to authorize an amendment to the petition to conform to the evidence, which, without objection and without dispute, demanded a finding that the subject matter of the contract was as itemized in the plaintiff's petition and that it did constitute all of the tile work in the building with which the defendant was concerned and did not constitute any other work of any kind. Thus, the evidence demanded a finding on the part of the jury that the contract had been completed and the plaintiffs were entitled to recover of the defendants the amount of compensation provided for therein. While the evidence was in dispute as to this amount, the verdict of the jury finding this issue in favor of the plaintiff was authorized by the evidence. Accordingly, it was error for the trial court to enter a judgment notwithstanding the verdict in favor of the defendant in accordance with Code Ann.Supp. § 110-113.

The partnership of D. W. McClellan and R. T. Greene d/b/a Greene Tile Co. sued Carmichael Tile Company on an alleged parol contract entered into about March 18, 1955, under the terms of which the plaintiff 'would provide the labor and install ceramic tile, wall and base tile, plus incidental shower room fixtures such as soap dishes, hand grips in the shower rooms, janitor closets, and a bathroom in the living quarters in said Men's Dormitory Building, the said work consisting of all the tile work in connection with the construction and the completion' of this building. The defendant was to supply the material and the plaintiff would be paid on the basis of labor cost plus 25%. The defendant denied that it was indebted to the plaintiff and alleged that the plaintiff was indebted to it in the sum of $36 for tile.

The following appears without dispute from the evidence: L. C. Thompson Construction Company had a contract for certain construction work at South Georgia College and subcontracted a part of the work to Greene Tile Company. Greene had been installing tile in the building directly for Thompson Construction Company and it was agreed that he should begin on the defendant's job when he finished the work for Thompson, which he did. He completed the necessary work in four showers, one bathroom, and two janitor's closets, which constituted all the work embraced by his contract with the defendant. There was no confusion or misunderstanding in relation to the work done for Thompson Company and the work done for the defendant. No question was at issue as to the quality or quantity of work or the time of performance. It was also undisputed that the plaintiff owed defendant $36 for tile. There was, however, a direct contradiction between the witnesses as to the contract price orally agreed upon, the plaintiff Greene contending that it was cost plus 25% or a total of $2,043.95 and Dan Carmichael, vice president of the defendant corporation with whom the agreement was made, testifying that it was to be done for a flat $800. The defendant at the close of the evidence made a motion for a directed verdict which was overruled and the jury found for the plaintiff in the sum of $2,007.06, thus finding for the plaintiff on his petition and for the defendant on its cross bill. Defendant then made a motion for judgment notwithstanding the verdict which was granted, and this judgment is assigned as error.

Abit Massey, Decatur, A. Mims Wilkinson, Jr., Atlanta, for plaintiffs in error.

Albert E. Mayer, William W. Daniel, Atlanta, for defendant in error.

TOWNSEND, Judge.

The trial court granted the motion for judgment notwithstanding the verdict on the theory that there was a fatal variance between the allegata and probata, citing in his judgment Dixie Ornamental Iron Co., Inc., v. Parrish, 91 Ga.App. 11, 84 S.E.2d 716, and Central Railroad & Banking Co. v. Cooper, 95 Ga. 406, 22 S.E. 549, both of which cases were concerned with motions for a new trial. The function of the motion for judgment non obstante veredicto is not the same as that of a motion for a new trial, but is a summary method of disposing of the entire litigation where it is obvious that the party against whom the motion is directed cannot under any circumstances win his case. Prior to the Act of 1953, Ga.L.1953, Nov. Sess., pp. 440, 444, Code Ann.Supp. § 110-113, this remedy, if available at all in Georgia, followed the common-law rule that it was available only in favor of the plaintiff and only on a consideration of the pleadings. Wynn v. Brewer, 75 Ga.App. 121(2), 42 S.E.2d 507. By making a motion for directed verdict a prerequisite to the motion for judgment notwithstanding verdict, it is obvious that the legislature intended for the courts to consider the evidence in the case along with the pleadings and to grant the motion where, under the language of Code, § 110-104 'there is no conflict in the evidence, and that introduced, with...