Pottinger v. Cross
Decision Date | 13 March 1984 |
Docket Number | No. 67747,67747 |
Citation | 170 Ga.App. 647,317 S.E.2d 850 |
Parties | POTTINGER et al. v. CROSS. |
Court | Georgia Court of Appeals |
Donald J. Ellis, Judith A. Denney, Atlanta, for appellants.
John F. Sweet, Atlanta, for appellee.
This is an appeal by Pottinger and Wildeman, d/b/a P & W Construction ("P & W"), of a trial court judgment for $5,000 in favor of Fred Cross. P & W was engaged in the renovation of apartment units into condominiums, and contracted with Cross to do dry-wall and related renovation work. Cross figured the job would run to $12,000-$17,000, but P & W replied it could only pay $12,000. Cross said he would try to do the job for that amount, and testified that P & W agreed to pay whatever cost exceeded $12,000. He also testified that in previous construction projects P & W had always paid him extra for add-on work. All agreements of the parties were oral. On January 15, 1982, Cross (according to his testimony) finished the work, including several add-ons or extras, and P & W inspected the work and paid him $12,000. Thereafter, Cross sought payment for the total cost, but P & W would not pay, saying at that time and at trial there was no agreement to pay more than $12,000 and there had been no add-ons (although at trial P & W admitted there were add-ons).
Ultimately, Cross demanded and then sued P & W for $5,000. P & W counterclaimed for $1,163 actual damages and $100,000 defamation damages, on the basis that after January 15, P & W had asked Cross to return to the site and repair work which had been found unacceptable (which Cross had refused to do until he was paid for the additional amount he claimed), and that the resultant delay in finishing the project cost P & W liquidated damages with the owner and damage to reputation. The trial court returned a verdict for the plaintiff Cross and nothing on P & W's counterclaim. Held:
1. Appellant P & W contends the trial court erred in refusing to enter involuntary dismissal at the close of the plaintiff's case for failure of plaintiff Cross to prove damages with reasonable certainty, and that the judgment for Cross is improper as the evidence is insufficient to support it. P & W cites Holder v. J.F. Kearley Inc., 153 Ga.App. 843, 267 S.E.2d 266 for the principle that remote or consequential damages are not allowed whenever they cannot be connected solely to the breach of contract. In Hosp. Auth. of Charlton County v. Bryant, 157 Ga.App. 330, 331, 277 S.E.2d 322, we held: "The burden is on the plaintiff to show ... evidence which will furnish the jury data sufficient to enable them to estimate with reasonable certainty the amount of damages." In this case, however, the plaintiff Cross presented receipts and invoices for his work totalling $16,382.12, or $4,382.12 more than he was paid by P & W. The balance of the $5,000 sought ($617.88) was attributed by Cross to his own time and labor which he did not specify except to say his own wage was usually $12-$15 per hour. As a reasonable inference, this would amount to, conservatively, about 51 1/2 hours of Cross' time and labor for which he sought $617.88.
Appellant's chief objection is that the "nice round figure of $5,000" appears suspicious and vague in itself, and is unsupported by evidence of reasonable certainty. Appellant P & W objects that the $16,382.12 in receipts represented Cross' costs for the entire job, and that there was not reasonably certain proof that the $4,382.12 claimed were for add-ons alone. However, it is not true, as P & W suggests, that the verdict in this case can be sustained only if the $5,000 claimed was for add-on or extra work. The evidence authorized a finding that an agreement existed whereby P & W would pay Cross quantum meruit or, as Cross contended was the agreement, for his additional cost of work over and above $12,000; and Cross presented cost receipts showing a total of $16,382.12 expended on the job. The award for $617.88 time and labor which a reasonable fact finder could find Cross did perform and amounted to at least 51.49 hours, is within the evidence that Cross began work on the project on November 19, 1981, and finished January 15, 1982. The evidence in this case may not show the damages to a certainty, but the ability to "estimate damages to a reasonable certainty" is all that is required (Hosp. Auth. v. Bryant, supra), and mere difficulty in fixing the exact amount will not be an obstacle to the award. Kuhlke Constr. Co. v. Mobley, 159 Ga.App. 777, 285 S.E.2d 236. See B & D Carpet Finishing Co. v. Gunny Corp., 158 Ga.App. 621, 622, 281 S.E.2d 354. The verdict was authorized by the evidence, including evidence of past dealings of the parties. See ...
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