This complex action was initiated by appellee Hollis & Hollis Construction Company (“Hollis”) and its principals against appellee Waldron’s Petroleum Tank Services, Inc. (“Waldron’s”), Gary Waldron, and appellant Marathon Oil Company (“Marathon”) to recover money allegedly due Hollis pursuant to a subcontract with Waldron’s for concrete work on a construction project at the Marathon terminal in Macon. Hollis sought to recover the money allegedly due from both Waldron’s and Marathon and also sought a judgment lien on Marathon’s property. Marathon answered and cross-claimed against Waldron’s, seeking to recover damages allegedly resulting from Waldron’s breach of its construction contract for the mechanical work on the project at the Macon terminal. Waldron’s in turn answered and cross-claimed against Marathon, seeking to recover damages allegedly accruing from Marathon’s wrongful termination of Waldron’s and Marathon’s failure to pay sums claimed due pursuant to the construction contract. The case proceeded to trial before the judge sitting without a jury. After hearing several days of testimony and numerous exhibits, most of which concerned the defendants’ cross-claims, the trial court entered judgment in favor of Hollis in the amount of $37,639.24 and granted Hollis a lien on Marathon’s property in the amount of $33,285.90. The court also found that the termination of Waldron’s by Marathon “was unauthorized under all the facts and circumstances of this case,” and awarded Waldron’s $69,556.87. The trial court also made several other findings not relevant on appeal. From the judgments in favor of Hollis and Waldron’s against it, Marathon has appealed and enumerated five grounds of alleged error. These enumerations will be addressed in logical rather than numerical sequence.
1. In its second enumeration of error, Marathon contends that the trial court erred in finding that the termination of Waldron’s was unauthorized when the evidence demanded a contrary finding. Thus, Marathon contends, the trial court should not have entered judgment in favor of Waldron’s, but should have permitted Marathon to recover its reasonable costs for completion of the contract work.
Despite Marathon’s persuasive argument to the contrary, we *49 cannot conclude that the trial court’s finding with respect to the termination was without evidence to support it. The written contract contained numerous specifications relating to the quality of work as well as a schedule for completion of the project. The original schedule called for a completion date of November 19,1979. All parties agree that the project was not near completion on that date. However, the schedule was completely revised on several separate occasions, and Waldron’s was working pursuant to the latest revised schedule at the time of the termination. There was considerable testimony about faulty workmanship and lack of supervision, as well as delays in completing the work according to the original schedule and the reasons therefor. A review of the transcript reveals that counsel for all parties appear to have thoroughly adduced the facts relevant to their respective claims.
A. We agree with Marathon in its contention that Waldron’s was under a duty to perform the work under the contract according to specifications and “skillfully, carefully, diligently, and in a workmanlike manner.”
Sam Finley, Inc. v. Barnes,
B. We also agree with Marathon’s contention that it had a right to performance of the work pursuant to the contract schedule. However, “[t]he terms of a written contract may be modified or changed by a subsequent parol agreement between the parties, where such agreement is founded on a sufficient consideration.”
Ryder Truck Lines v. Scott,
C. Marathon argues that Waldron’s should not be permitted a recovery, irrespective of any contract modifications, because Waldron’s failed to perform its original contract obligations. “[A]n offer or an agreement to extend the time conditioned upon the defendant performing is not binding on the plaintiff where the defendant in fact fails to perform. Each alleged agreement for extension of time ... is conditioned upon the defendant (a) meeting the new deadline, and (b) satisfactorily completing the original contract.”
Berston v. Futo,
D. Recovery by Waldron’s would not be prevented by its failure to request any extension of the completion date in writing, as required by the contract. As with the completion date itself, there was ample evidence from which the trial court could have concluded that this contractual requirement was waived or modified by mutual agreement.
Commercial Trust Co. v. Mathis,
E. “The Court of Appeals is a court for the correction of errors of law only, and has no jurisdiction to hear evidence aliunde the record, or to decide disputed issues of fact.”
Jones v. Smith,
2. Appellant’s first enumeration attacks the amount of the *51 award in favor of Waldron?s. The trial court awarded $69,556.87 to Waldron’s on its cross-claim, “that being the amount due under the terms of the contract between the parties, for those items of work in place by December 24, 1979, which had been or were subsequently approved by [Marathon].” Unless erroneous as a matter of law and if supported by the evidence, this finding must be upheld on appeal. See Division ID above. We agree, however, that the trial court applied an erroneous standard in deriving Waldron’s damages in this case.
“[W]here the contract is wrongfully breached by the owner the contractor is entitled to recover damages measured by his actual expenditure to the date of breach, less the value of the materials he has left on hand, plus the profit he would have realized in the event of complete performance, but in no event to exceed the contract price. If progress payments have been made by the owner, he is entitled to credit therefor ... If it appears that full performance would have resulted in a net loss, the amount of the loss must be deducted from [the contractor’s] recovery.”
Crankshaw v. Stanley Homes,
The trial court clearly used an inappropriate standard in reaching the amount of damages due Waldron’s. Instead of figuring Waldron’s actual expenditure to the date of the breach, less progress payments, the value of any remaining materials, and the projected loss to Waldron’s to complete the contract according to specifications
(Crankshaw,
supra), the trial court merely awarded an amount equal to the value of “those items of work in place by” termination and accepted by Marathon. “[J]udgments based on erroneous theories of law are generally reversed in the appellate courts. [Cits.]”
Meyers v. Glover,
3. In its third enumeration of error, appellant contends that the trial court erred in awarding Waldron’s prejudgment interest. We agree that Waldron’s was not entitled to prejudgment interest.
Prejudgment interest is allowable only where the amount recovered is liquidated, i.e., certain and fixed, “a sum which cannot be changed by the proof.”
Nisbet v. Lawson,
4. In its fourth enumeration, Marathon contends that the trial court erred in granting Hollis a lien on Marathon’s property. This argument is based upon the rule that “where a contractor abandons his contract the cost in completing the work is to be deducted from the contract price in order to ascertain the amount up to which mechanics and materialmen may claim liens. If such deductions, together with payments previously made to the contractor, equal or exceed the entire contract price, then of course the mechanics and materialmen have no lien, since there is nothing due under the contract.
Hunnicutt & Bellingrath Co. v. Van Hoose,
However, all of the above cases involved situations in which the contractor had abandoned the contract after part performance. None involved improper termination of the contractor by the owner, as the trial court found in this case, nor have we located or been directed by counsel to any such case. We are of the opinion that the foregoing rule should not apply where the cost of completion has exceeded the original contract price after the owner has improperly terminated the original contractor. As can be seen from a reading of Hunnicutt &c. Co. v. Van Hoose, supra, the rule protects an innocent owner from potential lienholders when a contractor abandons an unprofitable contract and leaves the owner with no choice but to exceed the contract price in order to complete the construction. The latter situation must be distinguished from the one in which the owner loses the benefit of his contract with the original contractor through his own wrongful termination of that contract and later incurs additional *53 costs for completion. The position of the owner, vis-a-vis materialmen and mechanics, wrongfully terminating the contract should not be improved by virtue of the termination. Consequently, the mere fact that the cost of completion plus prior progress payments exceeded the original contract price does not destroy Hollis’ lien. This enumeration is without merit.
5. The fifth and final enumeration of error challenges the trial court’s refusal to admit into evidence the deposition of Gary Waldron. Relying on
Head v. Russell Constr. Co.,
6. For the reasons stated in Division 2 of this opinion, the case is remanded to the trial court for recomputation of Waldron’s damages. The trial court is also directed to delete any award to Waldron’s for prejudgment interest.
Judgment affirmed in part and reversed in part, and remanded with direction.