16 S.E.2d 234 | Ga. Ct. App. | 1941
Lead Opinion
Only the general grounds were raised. The evidence authorized a finding by the judge, without a jury, that the contractor had not complied with the plans and specifications in building the house in question. Applying the rule for the measure of damages in such cases, as stated in Small v. Lee,
"Where a builder has in good faith intended to comply with a contract and has substantially complied with it, although there may be slight defects, caused by a misconstruction of the terms of the contract, and the house as built has been received by the owner, and is reasonably suited for the purposes intended, the contractor may recover the contract price, less the damage on account of such defects. In such case the true measure of damage is the difference between the value of the house as finished and the house as it ought to have been finished under the contract, plans, and specifications." Small v. Lee, supra. With reference to the basement, the plans and specifications provide for "a dry basement, where dampness or water conditions exist. Walls and floors shall be made water-tight before final acceptance." With reference to grading, they provide: "Finish grades shall be brought to levels shown on drawings and shall be sloped to drain water away from the building. Backfill shall be placed in 12" layers. Each layer shall be puddled and tamped before additional layers are placed. Front of lot shall be graded and shaped and grass seed put in, also 25 pieces of evergreen shrubbery set out." Construing the evidence most strongly to upholding the judgment, the judge was authorized, under the evidence, to find that the defendant was dissatisfied with the house, and it was accepted under an agreement that $100 of the contract purchase-price was to be deposited with the First National Bank in escrow to insure that the plaintiffs would properly grade the yard and waterproof the basement as required under the contract. The evidence authorized a finding that the basement leaked on three separate occasions. The first time defendant notified the plaintiffs and they painted the basement with waterproof cement paint which was not satisfactory to the defendant. The second time it leaked the plaintiffs were notified, and they merely came out and mopped out the basement, and did nothing toward waterproofing it. On the third occasion the defendant mopped out the basement, but the plaintiffs were not called, because of the pending suit and the counter-claim. The evidence for the defendant authorized a finding that it would cost $140.80 to waterproof the basement. It further *685 authorized a finding that the yard was not properly graded according to the plans and specifications, and it would cost him $57.50 to do so properly. The defendant admitted owing plaintiffs $28.02, and was willing to strike a balance for that amount. The net amount the defendant could have recovered under the evidence was $160.28. The evidence for the plaintiffs showed that they were contending for the $28.02 and the $100 held in escrow. The judge rendered a judgment of $140 for the defendant.
The rule in the Small case, supra, is the correct rule for the measure of damages in cases of this character, and the judge seems to have attempted to follow this rule in arriving at his judgment. The evidence presented a question of fact, and his finding was authorized by the evidence. The evidence was merely conflicting, and fully warranted the judgment. In the opinion of this court the case was brought to this court for delay only. Therefore, on motion by the defendant, ten per cent. damages is awarded in addition to those assessed by the trial court. Code, § 6-1801.
Judgment affirmed, with damages. Broyles, C. J., and Gardner,J., concur.
Addendum
Rehearing denied. Broyles, C. J., and Gardner, J., concur.