43 S.E.2d 285 | Ga. Ct. App. | 1947
1. Where a contractor, who is bound by a written contract to furnish all materials and labor and to construct and finish a house in strict compliance with certain plans and specifications and in a workmanlike manner, fails to comply with his contract by using inferior materials in the house and in failing to finish it in a workmanlike manner, the owner, by accepting the house and moving into it, does not waive his right to recover damages from the contractor for breach of his contract, where the owner had made complaint to the contractor about his failure to comply with the contract before accepting it and moving in, and the contractor had promised to remedy the defects in the house but had failed to do so.
2. The grounds of an amended motion for a new trial which allege that the court erred, without a request, in failing to instruct the jury as to any measure of damages or how it was to measure the damages claimed by the plaintiff but which do not allege or show how or in what manner the defendant was harmed by such failure, are too vague, uncertain and indefinite to show harmful error, and the court did not err in overruling such special grounds of the motion.
(a) The court did not err in overruling a ground of the amended motion for a new trial which alleged that the court erred in failing to instruct the jury, without a request, that the measure of damages involved was the difference in the cost of the house that the defendant turned over to the plaintiff and the house that was contracted to be built by the defendant. The measure of damages in such a case, where the defendant acts in good faith, is the difference in value between the house as finished by the contractor and the house as it ought to have been finished by him under his contract with the plaintiff. In the present case, the verdict was well within the range of the evidence and if the proper measure of damages were applied to the facts disclosed by the evidence, a much larger verdict than that found by the jury could be legally sustained. He who assigns error must show not only error but that it was hurtful to him. If there was error in the court's *308 charge or omission to charge with respect to the measure of damages involved, it does not appear that the defendant was harmed thereby, and the court did not err in overruling the special grounds of the motion for a new trial.
3. The verdict is supported by the evidence and has the approval of the trial judge, no harmful error of law appears, and the court did not err in overruling the defendant's motion for a new trial.
To this petition the defendant filed general and special demurrers. The judge overruled the general demurrer, and the defendant did not except to this ruling. The judge sustained the special demurrers with the right to the plaintiff to amend to conform to the ruling made, and the plaintiff amended his petition to meet these demurrers.
While the evidence on the trial was conflicting, there was evidence from which the jury was authorized to find that some of the materials used in the building were not in accordance with those called for in the plans and specifications, but were of an inferior quality or grade. It appeared from the evidence that the plaintiff had accepted or moved into the house on its completion and paid the defendant the price set out in the contract. But the plaintiff testified that some of the materials used in the house were not in accordance with those called for in the plans and specifications and that he made complaint to the defendant before paying for the house and the defendant promised to remedy them, but that he had never done so, and he further testified that some of the defects did not appear until after he had accepted the house. *309
The jury returned a verdict in favor of the plaintiff for $200, and the defendant's motion for a new trial, as amended, was overruled and he excepted to this court.
1. The defendant contends that the plaintiff, when he accepted the house with knowledge that inferior materials were used therein, waived any right to recover damages because of the defendant's failure to comply with the provisions of his contract, and that the verdict in favor of the plaintiff is contrary to the evidence and without evidence to support it. This contention can not legally be sustained. By accepting the house in the present case, the plaintiff did not waive his right to have as good a house as the contractor agreed to finish, or to recover damages from the contractor for the breach of his contract in failing to finish the house in accordance with the plans and specifications, so that the plaintiff would be in the same condition financially as he would have been had the contract been fully performed by the contractor. In Small v. Lee Brothers,
The cases cited and relied on by the plaintiff in error (Porter v. Wilder Son,
2. In the amendment to the motion for a new trial, the defendant alleged that the court erred in not giving any instructions to the jury as to how they were to estimate and measure the damages claimed by the plaintiff and in failing to instruct the jury that the measure of damages was the difference in "the cost of the house that the defendant turned over to the plaintiff and the house that was contracted to be built by the defendant," although no request to charge as to the measure of damages was made. Construing the pleadings and the evidence most favorably to the defendant, that is, that he acted in good faith, the proper measure of damages involved was the difference invalue between the house as finished by the contractor and the house as it ought to have been finished by him under his contract with the plaintiff. Small v. Lee Brothers, supra; Boggs
v. Shadburn,
3. The verdict is supported by the evidence and has the approval of the trial judge, no harmful error of law appears, and the judge did not err in overruling the defendant's motion for a new trial.
Judgment affirmed. Parker, J., concurs. Felton, J., concursin the judgment.