102 Ga. App. 694 | Ga. Ct. App. | 1960
1. The defendant relies on paragraph 11 of the contract between the general contractor and the plaintiff, the subcontractor, as authority for the position that the plaintiff has been paid the full amount due under the contract. This
Assuming, but not deciding, that the quoted paragraph gave the general contractor authority to deduct from the gross amount due the plaintiff under the contract a “proportionate amount” of any penalty incurred, did the contract give the general contractor the right to arbitrarily set such proportionate amount? If so, the clause is void under the majority opinion, prepared by Mr. Justice Head, in the case of Gray v. Aiken, 205 Ga. 649 (54 S. E. 2d 587). If the “proportionate amount” was not subj ect solely to the uncontrolled discretion of the general contractor then a question was presented for the trior of fact. The judge hearing the case without the intervention of a jury found for the plaintiff in a lesser amount than that sued for and his determination of the proper “proportionate amount” can not be said to be without some evidence to support it since the total contract price was shown, the amount of the plaintiff’s subcontract, the amount of delay contended by the general contractor to have been caused by the plaintiff and other facts on which such “proportionate amount” could be determined. Accordingly, this contention of the defendant as to why the trial court erred in overruling its motion for new trial, on the usual general grounds only, is without merit.
2. The sole remaining question presented by the defendant is that the evidence demanded a finding of an accord and satisfaction.
The plaintiff received, through his attorney, a check from the general contractor signed by the general contractor and countersigned by an agent of the defendant in the amount of $8,626.34. At the same time a statement was furnished the plaintiff showing, in part:
“Balance due $10,124.34 Less penalty 1,500.00
$ 8,624.34”
Judgment affirmed.