The appellants Anthony and Brendá Ray contracted with the ap-pellee Ron Strawsma (d/b/a Strawsma Construction Company) to build a house. The appellee built the house. The appellants moved into the house and lived in the house. The appellants refused to pay the appellee. This matter was tried before a jury and the jury found against them.
Strawsma Construction Company contended in its suit that the original contract price was $119,600; additions totalled $7,371.53; total contract price thus amounted to $126,971.53. Appellants paid Straw-sma $95,000 before disengaging him, leaving a balance owed of $31,971.53, but their cost of completion was $5,148.00, leaving the “alleged balance” due Strawsma of $26,823.53. Appellants counterclaimed for repairs to a security alarm system allegedly damaged by Strawsma or his agents, and for latent defects not discovered or discoverable prior to termination date of the contract. Appellants’ expert Clapp testified there were flaws and defects which could not be repaired such as out-of-plumb walls and unlevel floors; this witness testified that for $30,450 he might be able to raise the quality of the house from poor to average. Another witness, Dumas, attempted to testify as to diminution in value resulting from those defects that could not be repaired. The trial court refused to admit Dumas’ opinion for the reason that diminution in value resulting from defects which could not reasonably be repaired is not probative of value because the measure of damages is “the difference in the value of the house as delivered by the plaintiff contractor and the value of the house as it ought to have been finished under the terms of the contract.” See
Rose Mill Homes v. Michel,
1. The trial court erred in refusing to allow the witness Dumas to give his opinion of diminution in value resulting from defects which could not reasonably be remedied. It is true that the measure of damages in these cases of alleged breach by the contractor is the difference in the value of the house as completed by the contractor and the value of the house as it ought to have been finished under the terms of the contract.
Rose Mill Homes,
supra. However, this is the measure
*623
of damages; but
proof
of such value difference is a different matter. This difference in value may be “illustrated” by the reasonable cost of repair of defects (id. p. 808;
Hutto v. Shedd,
The evidence offered by the defendant homeowners in this case showed that there were defects which could not be reasonably repaired, such as out-of-plumb walls and unlevel floors. The case of
Small v. Lee & Bros., 4
Ga. App. 395 (
We think this rule is correct whether the house is “substantially adapted” to its purpose and the owner is getting the benefit of it, as in Small v. Lee, or whether it is allegedly “worthless.” It has some value, if only for scrap (see Hutto v. Shedd, supra, p. 656), and that value may obviously be whatever it is worth as a result of the irremediable defects. The owner should not have the benefit of that value, *624 however low, by recovering the entire contract price; the property’s value as diminished by irremediable defects should be deducted from the value of the house as it should have been completed according to the contract.
This is not a new rule, nor is it necessarily limited to breach of contract cases. See
Georgia-Car. Brick &c. Co. v. Brown,
The trial court correctly charged the jury in this case that as to the defendants’ counterclaim the measure of damages was “the difference in value of the house as finished by the plaintiff and the value of the house as it ought to have been finished under the terms of the contract.” But, since there was evidence of defects that could not be reasonably repaired, the proof was not limited to the contract price less cost of repair, but properly could be shown by the diminution of value resulting from these defects that could not be repaired. Small, supra; Allgood, supra.
The trial court erred in refusing to let the witness Dumas give his opinion of such diminution. Rose Mill Homes, supra.
However, we are unable to detect how this error harmed the defendant owners. The defendants additionally showed evidence that damage was so extensive it would cost more than $30,450 to repair any defects, if they could be repaired, and still the jury failed to render a verdict for the defendants on their counterclaim or the contractor’s claim. There was evidence that after the owners disengaged the contractor, the house could be completed according to the terms of the contract for $8,000, and this is what the jury found, deducting this amount from the balance owed and giving a verdict for $23,938.84 to the contractor. Therefore, as a matter of fact the exclusion of Dumas’ testimony as to “diminution of value resulting from defects that could not be repaired” was harmless, since the jury found the defects could be repaired.
*625 2. Appellants are not entitled to a reversal of the judgment based on excluded jury charges. The trial court correctly charged as to the consideration of expert testimony, and as to the measure of damages; the court charged correctly that if any defects could be reasonably remedied, such cost could properly be deducted from the contract price. The trial court did not charge that damages could be assessed based on the diminution of value resulting from defects that could not be reasonably repaired; such a charge was authorized in this case but as we indicated in Division 1 was harmless.
3. The trial court did not err in refusing a directed verdict to the Rays on the contractor’s claim for breach of contract, which appellants based on failure of the contractor to prove damages under
Williams v. Kerns,
4. Appellants made claim for a defective security alarm system. Evidence showed the alarm system was installed by a third party. The appellants’ claim for damages is based on the assertion that the entire contract was a “turn-key” job. However, appellants have made no showing to this court of any evidence showing causation between the malfunction of the system, whatever it is, and any work done or not done by the appellee. The general assertion appears to be that a “turn-key” job constitutes a guarantee. A “turn-key” job has been defined as one which is “technically a contract of sale. The developer (or seller) obtains his own funds for construction. There are no progress payments or liquidated damages provisions. The contractor does not have to furnish a performance bond, and the arrangement therefor has advantages for minority contractors who may lack substantial bonding capacity. The purchaser agrees to accept and pay for the units when they are completed and habitable, i.e., when the purchaser can ‘turn the key’ and move in.”
First Nat. Bank of Aberdeen v. Indian Indus.,
600 F2d 702, 704 fn. 3 (8th Cir. 1979). But “turn-key” or not, the owner still must show a defect and the failure to perform the contract in a skilful, careful, diligent and workmanlike manner. See
Blue v. R. L. Glosson Contracting,
Judgment affirmed.