Appellee Barnes, who operates roller skating rinks, sued appellant Sam Finley, Inc., a paving contractor, for negligent construction of a roller rink floor. The jury returned a verdict in favor of Barnes for $50,000. Finley appealed the judgment and we reversed, citing failure of the trial court to instruct the jury that an accord and sаtisfaction may be implied by the conduct of the parties.
Sam Finley, Inc. v. Barnes,
1. In enumerations 2, 3, 8, 22 and 23, Finley asserts that there was no evidence of any duty owed by him to Barnes, breach of which could create tort liability to Barnеs; that the issue on trial should have been limited to breach of contract; that damages were not recoverable in negligence; and that the jury instructions objected to on these grounds were erroneous. We do not agree.
Barnes initially filed suit alleging both breach of contract and negligence in the performancе of the contract by Finley. During the course of the trial, however, the complaint was amended to proceed solely on the theory of negligent constructiоn. The evidence presented amply authorized a finding that both improper and defective equipment was used by Finley to lay the asphalt base upon which the plastic skating surface was applied. The asphalt used in the first two layers was of incorrect composition and the grid pattern was not properly preрared. A third layer of asphalt of insufficient thickness was then laid by Finley in an effort to correct the situation, even though it was known that two layers of specified thickness wеre required, and Finley assured Barnes that the third layer of asphalt would cure the prior defects. Upon application of the plastic, however, the faulty asphalt base necessitated extensive repairs for which damages of close to $90,000 were sought.
“We accept as a fundamental legal precеpt that a single act or course of conduct may constitute either a breach of contract or an independent tort. If such act or conduct violates a contract obligation, suit may be brought on the breach. If the act or conduct violates a duty owed to plaintiff, independent of contract, to avоid harming him, suit may be brought on the tort. [Cits.] Suit may be brought on both as independent actions. [Cits.]”
Foster Wheeler
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Corp. v. Ga. Power Co.,
2. It follows that appellant was not entitled to a directed verdict on the issue of liability in contract since that issue was no longer in the case. Enumeration of error 1 is without merit.
3. In Enumerations 4, 5, 6, 9 and 28, appellant reargues contentions as to excessiveness, mitigation and failure to рrove damages which were decided adversely to it in the first appeal.
Sam Finley, Inc. v. Barnes,
supra, at p. 432 (2). Neither the law nor the facts having changed upon retrial, “our earlier ruling is binding upon us.”
Hixson v. Barrow,
Enumerations 12, 14, 15, 16, 18, 30, 31 and 32 challenge the manner and sufficiency of appellee’s proof of damages as to various utility bills, labor expenses and relatеd payroll taxes, workers’ compensation and unemployment benefits, as well as particular materials and equipment rental and costs. The trial transcript reveals that in addition to comprehensive testimony, all available documents pertaining to these matters were produced at trial, establishing proof of dаmages with equally “reasonable certainty” (if not more) than in the previous trial.
Sam Finley, Inc. v. Barnes,
supra. All the instructions to the jury in regard to such damages were correct statements оf the law, and were adjusted to the evidence. Code Ann. §§ 105-104,105-2004,105-2007,105-2009.
See Howell v. Ayers,
supra, at p. 901 (5). “It is a basic precept of our law that the amount of verdict is for the jury [Cit.] and where the jury verdict is ‘within the range of the testimony, as are the damages in this case, the appellate court should not reverse the judgment of the trial court.’ [Cit.]”
Etheridge v. Kay,
4. Appellant’s assertion that it was erroneously denied relief under Article 2 of the Uniform Commercial Code has been twice considered and rejected by this court, both on interlocutory аpplication (No. 361, denied March 25,1977) and direct appeal
(Sam Finley, Inc. v. Barnes,
supra). It is still devoid of merit. See, e.g.,
Dixie Lime & Stone Co. v. Wiggins Scale Co.,
5. Enumerations complaining of admission in evidence of a section of the roller rink floor because appellant was not allowed to observe it being cut or to analyze its components are ill-founded. When this exhibit was offered, objection was made that it was too large to be handled by the jury or the reporter. When a motion to view the entire rink was made by Barnes at the close of plaintiffs evidence, appellant objected and the court did not grant the view. However, no objection was made on the ground of lack of opportunity to inspect, and thus there was no ruling of the trial court for this court to review on appeal. Cf.
Colonial Lincoln-Mercury v. Molina,
6. Denial of appellant’s extraordinary motion for new trial, based upon an affidavit that aрpellee is not registered as “an employer insuring workers’ compensation for employees,” was not an abuse of discretion. This information fails to meet thе requirements for the grant of a new trial on the ground of newly discovered evidence set forth in
Bell v. State,
7. Admission of documentary evidence (bills and invoices) containing information relevant to expenses incurred by Barnes in attempting to repair recurring damage to the surface of the rink was proper, even though partially pertaining to expenses of other rinks.
Davis v. Glenville Haldi, Inc.,
8. Upon retrial the jury was fully and accurately charged on the law of appellant’s defense of accord and satisfactiоn. The court, however, repeated an instruction requested by Barnes, that where there is no agreement between the parties to settle all disputes arising from thе original contract a settlement of the original contract does not result although money is demanded and received by one of the párties. That this was done in order to clarify a previous
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misstatement of this charge was explained to the jury by the trial judge, and the jury was instructed not to give additional weight to the charge because of its repetition. We do not agree with appellant that this placed undue emphasis on the charge, or that it was contrary to law and unadjusted to the еvidence.
Fowler v. Gorrell,
9. The trial court did not err in refusing to charge as requested by appellant that a party has no right to be intentionally or deliberately self-contradictоry, and that the obligation to tell the truth is especially binding upon a plaintiff who seeks by his own testimony to establish a substantial right against another. This rule is applicable only “whеre the plaintiff is the
sole
witness by whose testimony alone it is sought to establish the allegations of his petition ...”
W. & A. Railroad v. Mathis,
Barnes’ testimony has been weighed and accepted by two juries, notwithstanding appellant’s attacks upon his veracity, and two trial judges hearing and observing his dеmeanor under extensive cross-examination have refused to grant new trials upon the credibility or weight of this testimony. No harmful error having occurred for any reason advanced upon this appeal, the judgment must therefore be affirmed.
Judgment affirmed.