Redman Development Corp. v. West

• Decision Date: 25 September 1972
• Docket Number: No. 47382,No. 3,47382,3
• Citation: 193 S.E.2d 213,127 Ga.App. 265
• Parties: REDMAN DEVELOPMENT CORPORATION et al. v. Richard L. WEST
• Court: Georgia Court of Appeals

Page 213

193 S.E.2d 213

127 Ga.App. 265

REDMAN DEVELOPMENT CORPORATION et al. v. Richard L. WEST.

No. 47382.

Court of Appeals of Georgia, Division No. 3.

Sept. 25, 1972.

Rehearing Denied Oct. 11, 1972.

Smith, Cohen, Ringel, Kohler, Martin & Lowe, William G. Grant, Atlanta, for appellants.

Zachary & Segraves, J. Ed Segraves, Decatur, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

Richard L. West, d/b/a West Concrete Company, brought suit against Redman Development Corporation and others, alleging that West was a materialman engaged in the business of furnishing labor and materials for the improvement of real property; that a contract existed between West and Redman for the supply of materials and improvement to real property; that West complied with the contract insofar as he was permitted by Redman; that he had filed a lien on the property involved ¹; and that Redman was indebted to West in the sum of $31,447.62. Redman counterclaimed, alleging that West had breached the contract and that Redman had been forced to expend $14,624.24 to complete the work West had failed to do.

On the trial of the case before the court without a jury it developed that there were two contracts between the parties, one denominated 'masonry contract' and the other 'concrete contract,' and that West's claim was partly for an amount he contended was owed on the two contracts and partly for an amount he contended he was entitled to have as compensation for work done at Redman's direction in addition to that called for by the contracts. The trial court found that Redman had breached the contracts; that the unpaid balances on the contracts, plus amounts due for the additional work, totaled $31,547.62 ($100 more than West claimed in his complaint); that Redman was entitled to a credit of $5,553.90 which the court found Redman had expended to complete to unperformed portion of the work covered by the contracts; and that defendants were accordingly indebted to West in the amount of $25,993.72, for which amount judgment was entered. In overruling Redman's motion for new trial, the court recited the $100 mistake in the judgment and entered a new judgment for $25,893.72 without, however, formally vacating or setting aside the prior judgment. Redman and the other defendant appeal from both judgments and the order overruling the motion for new trial. Held:

1. One of the questions before the trial court was whether the contracts were breached by West or by Redman, and the trial court found that the termination of the contracts constituted a breach by Redman. Appellants have assigned no error on that finding and no question is now raised in that respect.

2. Appellants contend that there is no evidence in the record to support a judgment in favor of West in any amount whatsoever and that the evicence demands a judgment in favor of appellant Redman on its counterclaim. It is urged (a) that damages were not properly proved to authorize a recovery by West on the contracts and (b) damages were not properly proved to authorize recovery for the additional work. It will be observed that appellants must establish both propositions in order to prevail on the main contention that West was not entitled to recover at all.

(a) 'The measure of damages for a contract not completed because of the fault of the opposite party is the difference between the contract price and the cost to complete the work plus sums expended by the contractor up to the time of the alleged breach. Herrman v. Conway, 83 Ga.App. 888, 65 S.E.2d 41.' Robertson v. Gore, 115 Ga.App. 537, 538, 154 S.E.2d 748, 750. In such a case the breaching defendant is primarily liable for the contract price but is entitled to compel plaintiff contractor to credit defendant with amounts plaintiff saved from its cost of performance by reason of being relieved from further performance. Campbell & Co. v. Mion Bros., 6 Ga.App. 134, 135, 64 S.E. 571. while appellants concede that the evidence shows the contract prices, the payments made thereon, the items called for by the contracts which West did not complete (retaining walls, patios, steps and sidewalks), and the...