Toole v. Brownlow & Sons Co., Inc., 58215

• Decision Date: 11 September 1979
• Docket Number: No. 58215,58215
• Citation: 151 Ga.App. 292,259 S.E.2d 691
• Parties: TOOLE v. BROWNLOW & SONS COMPANY, INC.
• Court: Georgia Court of Appeals

Page 691

259 S.E.2d 691

151 Ga.App. 292

TOOLE v. BROWNLOW & SONS COMPANY, INC.

No. 58215.

Court of Appeals of Georgia.

Submitted July 3, 1979.

Decided Sept. 11, 1979.

James L. Ford, Atlanta, for appellant.

John G. McCullough, Atlanta, for appellee.

CARLEY, Judge.

Brownlow & Sons Company, Inc. (Brownlow) filed suit alleging that Toole was indebted to it for improvements made to property. Toole answered and counterclaimed, asserting that he had entered into an agreement with Brownlow for the improvements for a total price of $8,275 but Brownlow had "failed to perform said agreement within a reasonable period of time as contemplated by the parties, performed inadequately, and (Toole) has been damaged thereby." Toole prayed that judgment be entered for him on his counterclaim "in an amount not less than any amount the jury may deem to be the amount of (Toole's) damages . . . , or that such amount be set off against (Brownlow's) claim."

Trial of the case established two central issues. First, the question was presented whether or not certain items of improvements constituted changes or additions to the original agreement, thereby entitling Brownlow to additional compensation over and above the original agreed upon sum or whether those items were initially envisioned so that the charges therefor were encompassed in the original contract price, as contended by Toole, and thus no additional amounts were owing. Second, while it was shown that Toole had accepted tender of the building wherein the improvements had been made and had paid Brownlow some $5,000, he had refused to pay any additional amounts, notwithstanding the fact that the undisputed contract price was in the amount of $8,275. Toole attempted to justify this position by arguing that even though the contract established no set date for completion, Brownlow had breached the agreement by failure to complete it within a "reasonable" time. He thus argued that he was entitled to a recoupment of all amounts in excess of $5,000 because of Brownlow's breach. Therefore, the issues for resolution at trial were the amount Brownlow was entitled to recover and, whatever the amount of that recovery might be, whether Toole was entitled to recoupment because of a breach by Brownlow.

After hearing all the evidence, the trial court ruled that Toole had failed to prove his entitlement to a recoupment because he had failed to show that the delay in the time of completion had resulted in any damage to him. A directed verdict was granted to Brownlow on Toole's counterclaim and the issue of Toole's entitlement to a recoupment on the contract price was removed from the jury's consideration. The case was then submitted to the jury solely on the issue of whether Brownlow was entitled to the sums it claimed for "additional" improvements or whether its recovery should be limited to the undisputed original contract price. The jury was instructed to return a verdict for Brownlow in an amount "not less than the contract price, original contract price" or, in other words, not less than the $8,275 which was the undisputed original contract price. The jury returned a verdict for the full amount of Brownlow's claim, finding, in effect, that the disputed improvements were not part of the original agreement and that Brownlow was, therefore, entitled to additional compensation for them. Toole appeals.

1. Toole does not specifically enumerate as error the direction of a verdict against him on the recoupment counterclaim. He does enumerate, however, the trial court's resulting instruction to the jury that it return a verdict in favor of Brownlow in an amount not less than the contract price of $8,275. Since this instruction, in effect, directed a verdict against Toole on the recoupment issue (by removing the question of Brownlow's breach from the jury's consideration), the validity of the directed verdict itself is raised for review. Code Ann. § 24-4514(e).

"Recoupment is a right of the defendant to have a deduction from the amount of the plaintiff's damages, for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the same contract." Code Ann. § 20-1311. "The doctrine of Recoupment is but an improvement upon the old doctrine of failure of consideration. It looks through the whole contract, treating it as an entirety, and regarding the things done and stipulated to be done on each side, as the consideration for the things done and stipulated to be done on the other; and when a plaintiff seeks redress for the breach of the stipulations in his favor, it Sums up the grievances on each side, strikes a balance, and gives him a (judgment) for only such Difference as may be found in his favor." Lufburrow v. Henderson, 30 Ga. 482(2) (1860). Toole contends that there was evidence from which the jury could conclude that he wished to have the improvements made within a shorter period of time than the six months that Brownlow took to complete the job; that Brownlow's performance, therefore, was not made within a "reasonable" time; and that thus there was a partial failure of consideration warranting a recoupment, i. e., a downward adjustment of the contract price.

" A plea of total or partial failure of consideration is a permissible defense to an action founded upon a contract. (Cit.) The burden of proving a prima facie case to recover (on the contract) is on the one claiming under the contract. The burden of sustaining the plea of total or partial failure of consideration is on the one asserting the defense. (Cits.)" National Organic Corp. v. Southern Bag Corp., 111 Ga.App. 111(2), 140 S.E.2d 890 (1965). Under the circumstances of this case, Toole having admitted the existence of a contract with a contract price of $8,275, the burden was upon him to establish by a preponderance of the evidence his contention that he was not indebted in this amount because of a partial failure of consideration. King v. Rich, 103 Ga.App. 50(1), 118 S.E.2d 277 (1961). In meeting this burden of showing entitlement to a recoupment a party must not only show that there may have been a failure of consideration, he must also prove the extent of damage allegedly resulting from such failure. "It is well settled that '. . . the defendant can have no abatement from the purchase price on account of a partial failure of consideration, unless he furnishes to the jury sufficient data to enable them to estimate with reasonable certainty the amount of the abatement.' (Cits.) '. . . (T)he defendant must then introduce enough proof to show how far the consideration has failed and how much loss has been occasioned by the failure, to justify the jury in fixing upon some definite amount, before there can be any reduction in the verdict from the full sum . . . We do not mean to say that this proof must establish the damage with arithmetical...