Appellant-plaintiff hired appellee-defendant to construct a building to be used as appellant’s law office. After construction began, disagreements arose between the parties and the situation became strained. Subsequently, appellee was locked off the job by appellant and was thereby prevented from further work on the project. Appellant sued, alleging breach of contract, negligent construction, malicious abuse of process, fraud and conversion of personal property. Appellee answered the complaint and, in addition, filed a counterclaim, which, as amended, sought only damages for breach of contract. After a jury trial, a verdict was returned in favor of appellee in the main action and on the counterclaim, the verdict on the counterclaim being in the amount of $20,822.71. Appellant appeals from the judgment entered on the verdicts.
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1. Appellant enumerates as error the charge given by the trial court on damages recoverable by a contractor when the contract of construction is wrongfully breached by the owner. Appellant contends that this charge, which was taken directly from this court’s decision in
Williams v. Kerns,
2. Appellant enumerates as error the denial of his motion for directed verdict as to appellee’s counterclaim. Appellant specifically asserts that appellee failed to prove the amount of damages allegedly sustained. Our review of the transcript reveals that appellee did offer specific evidence of damages incurred. “[I]n reviewing the [denial] of a motion for a directed verdict, the appropriate standard to be utilized is the ‘any evidence’ test. [Cit.] A directed verdict is proper only where there is no conflict of evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a particular verdict. [Cit.]”
Jones v. Smith,
3. Appellant further enumerates as error the trial court’s charge that “. . . if you find that the [appellee] has fully complied with his obligation under the contract both as to the materials used and the manner of doing the work, he is not to be accountable for unsatisfactory results.” Such a charge is a correct statement of the law.
Bettis v. Comfort Control, Inc.,
4. Next, appellant asserts that the trial court erred in giving the following charge: “Where the compensation is due only on the performance of the contract, a literal and strict performance is not required. If the builder acting in good faith and intending and attempting to perform his contract does fulfill the contract, he may recover the contract price notwithstanding slight and trivial defects or deviations in performance for which compensation may be made in all its material and substantial particulars by an allowance to the
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owner.” The charge is essentially a correct statement of the law of substantial performance. See
Allied Enterprises v. Brooks,
5. Appellant next enumerates as error the charge given by the trial judge that “where a party prevents the performance of a stipulation of a contract undertaken by the other party, he is estopped from setting up in his own behalf any injury which may have resulted from the nonperformance of such condition.” The charge is a correct statement of the law.
Allied Enterprises,
6. Appellant further enumerates as error the denial of his motion for directed verdict as to his claim for conversion of a tractor. The evidence shows that the appellee lawfully acquired possession of the tractor in question. There is considerable evidence creating an issue of fact as to whether it was the intent of the parties to transfer title to appellee at the time he took possession of the tractor. There was no error in denying appellant’s motion for directed verdict.
Kornegay v. Thompson,
7. Appellant enumerates as error the court’s ruling that, under the provisions of the contract, appellee could recover interest on the payments which were due but unpaid. Our review of the record demonstrates that the objection raised in the trial court in this regard is not asserted in this court. Likewise, the objection presented on appeal with regard to this enumeration of error was not raised in the court below. Accordingly, the issue underlying this enumeration, not being raised at trial, cannot be considered on appeal.
M. W. Buttrill, Inc. v. Air Conditioning Contractors,
8. Appellant next cites as error the denial of his motion for mistrial based on testimony elicited by appellant from a witness on cross-examination. Appellant made a motion for mistrial soon after the statements in question were made. The motion was denied, but the trial judge, at appellant’s request, instructed the jury “not to consider any matters except as they are relevant to this particular case and the issues in this case.” Appellant did not renew his motion for mistrial at that time, but waited until after both parties had rested to do so.
“[I]t is the general rule that, in order to preserve a point of error
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for the consideration of an appellate court, counsel must take exception to the alleged error at the
earliest possible opportunity
in the progress of the case by a proper objection made a part of the record.” (Emphasis supplied.)
Nashville &c. R. v. Ham,
9. Appellant’s final enumeration raises the general grounds. This court does not pass on the weight of the evidence, only on the sufficiency thereof. If there is “any evidence” to sustain the jury’s verdict, an appellate court will not disturb it.
Howard v. Howard,
Judgment affirmed.