Appellant-contractor entered into a written contract with appellee-subcontractor whereby appellee agreed to erect a pre-engineered metal building. After construction began, a dispute arose between the parties, and eventually appellee was prevented from performing any further work on the project. Appellee initiated the instant suit against appellant, seeking to recover the remaining balance of the contract price, plus an amount for additional work performed and expenses incurred as evidenced by certain change orders. Appellant answered and counterclaimed, alleging breach of contract by appellee. Appellant sought damages for expenses it had allegedly incurred in completing the contract. Following a jury trial, a verdict was returned for appellee for the full balance of the contract price plus the additional amount as evidenced by the change orders. Appellant appeals from the judgment entered on the verdict.
1. Appellant enumerates as error the general grounds. The evidence, while not without conflict, authorized the jury to make the following findings of fact: Under the terms of the contract, appellee was to erect a large pre-engineered metal building. Appellant was to fur
Appellant contends that on this evidence a finding is demanded that appellee did not fully perform its obligation under the contract, and that appellee may not recover the full contract price but only for that portion of the contract which it has performed. Appellant relies specifically on appellee’s admission that it never applied the mastic or screws in the erection of the roof.
“ ‘[I]t is generally held that, where the compensation is due only on the performance of the contract, a literal and strict performance is not required, and
if the builder acting in good faith and intending and attempting to perform his contract, does so, 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 owner.’
Furthermore, under the above-stated principles of law, the evidence in the instant case does not demand that appellant be given an “allowance” for any “slight and trivial defects in [appellee’s] performance.” Allied Enterprises v. Brooks, supra at 834. It has been held that “ ‘where a defendant prevents the performance of a stipulation of a contract undertaken by the plaintiff, he is estopped from setting up in his own behalf any injury which may have resulted from the non-performance of such condition.’ [Cits.]” Allied Enterprises v. Brooks, supra at 834. Thus, even if the evidence demanded a finding that appellee’s work was incomplete or defective in the manner alleged by appellant, the jury was clearly authorized to also find that by not providing the necessary materials and by preventing its crews from repairing the leaks in the roof, appellant wrongfully prevented appellee from timely performing the remainder of the work on the contract. A finding that appellee was entitled to the entire contract price plus the amount for additional work was authorized by the evidence.
2. Appellant enumerates as error the admission, over its hearsay objection, of testimony to the effect that its men had been on the roof after appellee had left the job. The transcript reveals that similar testimony by other witnesses was later admitted into evidence without objection. The erroneous admission of evidence over objection is not reversible error where similar evidence is subsequently admitted without objection. See
Cloer v. Life & Cas. Ins. Co.,
3. During trial, appellant attempted to admit into evidence a letter written by a non-party to the action and addressed to appellant. The letter referred to specific areas of defective workmanship which the author had discovered during his inspection of the project. Appellee made a hearsay objection. The trial court allowed the witness for appellant to testify as to the existence and nature of the letter and as to appellant’s subsequent actions and conduct which resulted from
OCGA § 24-3-2 provides: “When, in a legal investigation, information, conversations, letters, and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence, not as hearsay, but as original evidence.” “Hearsay when admissible, under this rule, derives its competency from the necessity of the case. If the fact that a [letter was written] is all that is relevant or needed as an inducement to explain conduct. . . [cit.], ‘[i]t is more regular to admit only the fact that a [letter was written], without going into the particulars of what was said.’ ”
Todd v. State,
In the instant case, it is clear that the existence and nature of the letter was all that was relevant and necessary to explain appellant’s subsequent conduct. As recently noted by the Supreme Court of Georgia, “[i]f the hearsay rule is to remain a part of our law, then OCGA § 24-3-2 must be contained within its proper limit. Otherwise, the repetition of the rote words ‘to explain conduct’ can become imprimatur for the admission of rumor, gossip, and speculation.”
Teague v. State,
4. Appellant’s final enumeration asserts that the trial court erred in allowing counsel for appellee to make improper and prejudicial remarks to the jury during his closing statement.
The transcript reveals that during his closing argument, counsel for appellee made a certain remark from which the jury could imply that one of appellant’s witnesses had a financial interest in the outcome of the case, and that perhaps appellant and the witness had some type of “agreement.” Appellant objected to this remark, but did not move for a mistrial or request that the trial court instruct the jury not to consider the argument, or that appellee’s counsel be reprimanded following the objection. Appellee’s counsel merely was instructed to continue his argument, and the trial court thereby, in effect, overruled the objection.
“[A] mere objection to an unwarranted and prejudicial argument, without more, is not sufficient to properly invoke a ruling by the court. [Cit.]”
McCoy v. Scarborough,
Other allegedly improper remarks made by appellee’s counsel to which appellant made no objection or motion likewise provide no basis for review by this court. McCoy v. Scarborough, supra.
Judgment affirmed.