This is an appeal by Pottinger and Wildeman, d/b/a P&W Construction (“P&W”), of a trial court judgment for $5,000 in favor of Fred Cross. P&W was engaged in the renovation of apartment units into condominiums, and contracted with Cross to do dry-wall and related renovation work. Cross figured the job would run to $12,000-$17,000, but P&W replied it could pay only $12,000. Cross said he would try to do the job for that amount, and testified that P&W agreed to pay whatever cost exceeded $12,000. He also testified that in previous construction projects P&W had always paid him extra for add-on work. All agreements of the parties were oral. On January 15, 1982, Cross (according to his testimony) finished the work, including several add-ons or extras, and P&W inspected the work and paid him $12,000. Thereafter, Cross sought payment for the total cost, but P&W would not pay, saying at that time and at trial there was no agreement to pay more than $12,000 and there had been no add-ons (although at trial P&W admitted there were add-ons).
Ultimately, Cross demanded and then sued P&W for $5,000. P&W counterclaimed for $1,163 actual damages and $100,000 defamation damages, on the basis that after January 15, P&W had asked Cross to return to the site and repair work which had been found unacceptable (which Cross had refused to do until he was paid for the additional amount he claimed), and that the resultant delay in finishing the project cost P&W liquidated damages with the owner and *648 damage to reputation. The trial court returned a verdict for the plaintiff Cross and nothing on P&W’s counterclaim. Held:
1. Appellant P&W contends the trial court erred in refusing to enter involuntary dismissal at the close of the plaintiff’s case for failure of plaintiff Cross to prove damages with reasonable certainty, and that the judgment for Cross is improper as the evidence is insufficient to support it. P&W cites
Holder v. J. F. Kearley, Inc.,
Appellant’s chief objection is that the “nice round figure of $5,000” appears suspicious and vague in itself, and is unsupported by evidence of reasonable certainty. Appellant P&W objects that the $16,382.12 in receipts represented Cross’ costs for the entire job, and that there was not reasonably certain proof that the $4,382.12 claimed were for add-ons alone. However, it is not true, as P&W suggests, that the verdict in this case can be sustained only if the $5,000 claimed was for add-on or extra work. The evidence authorized a finding that an agreement existed whereby P&W would pay Cross quantum meruit or, as Cross contended was the agreement, for his additional cost of work over and above $12,000; and Cross presented cost receipts showing a total of $16,382.12 expended on the job. The award for $617.88 time and labor which a reasonable fact finder could find Cross did perform and amounted to at least 51.49 hours, is within the evidence that Cross began work on the project on November 19, 1981, and finished January 15, 1982. The evidence in this case may not show the damages to a certainty, but the ability to
“estimate damages to a reasonable certainty”
is all that is required
(Hosp. Auth. v. Bryant,
supra), and mere difficulty in fixing the exact amount will not be an obstacle to the award.
Kuhlke Constr. Co. v. Mobley,
2. The appellant P&W takes objection to the trial court’s refusal to admit into evidence the prime contract between itself and the building owner, which provided P&W would pay $100 liquidated damages for each day of delay in project completion. P&W had to pay $2,800 liquidated damages under this provision and, by counterclaim, sought to charge this amount (with a set-off for add-ons) against appellee Cross for his refusal to return to the job and complete or repair certain unacceptable work. P&W argues the prime contract is admissible and relevant since a subcontractor can be held liable for a prime contractor’s loss in liquidated damages under the terms of the agreement between the owner and the prime contractor, citing
Concrete Materials of Ga. v. Smith &c.,
The inadmissibility of such a document, and its inaccessibility as a source of damages against a third person who was not a party to it and not aware of it, seem to be grounded in the generally remote and speculative nature of extending certain damages to one who
ordinarily would not be liable for them,
see
Concrete Materials of Ga.,
supra, p. 822 (emphasis supplied); and could not foresee that his breach would result in such damages,
Albany Phosphate Co.,
supra, pp. 777-778. A different situation might arise where the third party has actual knowledge or notice that his breach will cause another to incur specific or usual damages, which must have been within the contemplation of the parties
(Albany Phosphate Co.,
supra;
Sanford-Brown Co. v. Patent Scaffolding Co.,
There is much evidence in this case concerning the delay encountered in completing the project, but not so much concerning its cause, or proximating it to appellee Cross. The evidence on this point is vague and frequently contradictory. The trial judge found the cause of delay was not, by a preponderance of the evidence, attributable to the appellee Cross, and the evidence supports his finding.
On appeal, the appellate court does not weigh the evidence but looks only to see if there is any evidence to support the trial court’s finding.
Howard Sheppard, Inc. v. McGowan,
Judgment affirmed.
