Crowe v. Holloway Development Corp.

152 S.E.2d 913, 114 Ga. App. 856

• Court: Court of Appeals of Georgia
• Decided: November 16, 1966
• Docket: 42255
• Status: Published

Opinions

Per Curiam.

The notice of appeal is from the order of the trial court directing the jury to find for the defendant. It is contended that this order has never been reduced to writing and signed by the judge and that therefore the appeal must be dismissed. We disagree.

While Sec. 18 B of the Appellate Practice Act of 1965 (Ga. L. 1965, pp. 18, 32) states that “The filing with the clerk of a judgment, signed by the judge, constitutes the entry of such judgment, within the meaning of this Act,” this is for the purpose “of computing the time from which the time for filing a notice of appeal (Section 5) or motion for new trial (Section 16) commences running.” 1 Georgia State Bar Journal 451, 487.

Basically whatever judgments were traditionally reviewable as being final judgments under a writ of error are reviewable under a notice of appeal. Munday v. Brissette, 113 Ga. App. 147 (148 SE2d 55).

Even under our old technical rules, this appeal should not be dismissed. Mullis v. McCook, 185 Ga. 171 (194 SE 171). “An assignment of error upon the direction of a verdict is an assignment of error upon a final judgment. Scarborough v. Holder, 127 Ga. 256 (56 SE 293); McKenzie v. Consolidated Lumber Co., 142 Ga. 375 (4) (82 SE 1062); Winter Inc. v. Peoples Bank of Calhoun, 166 Ga. 385 (2) (143 SE 387).” Be LaPerriere v. Herrmann & Henican, 41 Ga. App. 60 (2) (151 SE 813).

To hold otherwise would be in defiance of the mandate of the General Assembly that the Appellate Practice Act of 1965 “shall be liberally construed so as to bring about a decision on the merits of every case appealed, and to avoid dismissal of any case. Sec. 23 (Ga. L. 1965, pp. 18, 40). These new rules “were not adopted to set traps and pitfalls by way of technicalities for unwary litigants.” Chambliss v. Hall, 113 Ga. App. 96, 98 (147 SE2d 334).

As to the judge’s order directing a verdict, this court takes judicial notice that such an order is normally issued ore tenus. It becomes reduced to writing by virtue of its recitation in the verdict that it was at the court’s direction and by the court’s judgment, signed and entered up upon the verdict. All of this appears in the record in this case. The motion to dismiss is denied.

After the plaintiff had rested his case and the defendant had moved for a directed verdict, plaintiff expressed his willingness and preparedness to go into the question of the reasonableness of the defendant’s expenditures for the completion of the job. The plaintiff was, in effect, precluded from developing this issue by the court’s ruling that it was not necessary for this issue to be considered. “If the contractor abandons his contract, the owner may have it completed and charge the necessary cost of completion against the contract price, before being liable either to the contractor or to the materialman.” (Emphasis supplied.) Prince v. Neal-Millard Co., 124 Ga. 884, 893 (53 SE 761, 4 AC 615); Spirides v. Victory Lumber Co., 76 Ga. App. 78, 81 (45 SE2d 65); Ayers v. Baker, 216 Ga. 132, 135 (114 SE2d 847). In a case such as this where an original contractor defaults and the owner is forced to hire another to complete the work, when the owner prima facie shows that it was necessary to make expenditures to have the contract completed and makes a full disclosure as to the details of the work, the nature of the work and the amount expended for such completion, the burden of proof is on the party seeking to recover from the owner on the original contract to show that the amount expended was so highly excessive and unreasonable as to amount to bad faith. The defendant pleaded that the amount spent on completing the job was reasonable and there was such testimony in the case. This testimony, however, did not require submission of the case to the jury as it was not necessary for the defendant to show the reasonableness of the expenditure for the reason above stated, that the burden of proving unreasonableness of the expenditure was on the plaintiff and he offered no evidence to that effect and enumerated no error on the court’s failure to permit him to introduce such evidence.

There was testimony by the contractor who completed the job that his charges were a reasonable sum necessary to do the work and by the plaintiff’s own foreman that the completed job was of comparable workmanship with that of the plaintiff company. The contended apparent discrepancies in matters of cost and billing are explained by such evidence as the necessity of having to “redo” some of the plaintiff company’s work to bring it up to specifications, and completion and separate billings for portions of the work in order to allow earlier occupancy of the apartments. The mere fact that the charges were higher than the plaintiff company’s is not necessarily evidence of “padding,” especially in view of the fact that the plaintiff company had gone into bankruptcy subsequently to, and perhaps because of, its business operation with the levels of workmanship and pricing in evidence. The evidence as to the necessity for the completion of the work was unrebutted and it would have been virtually impossible for the jury to have found, from the complicated documentary evidence based on so many factors, as well as the testimony, that the charges were unreasonable.

The court, therefore, did not err in its judgment directing a verdict in favor of the defendant.

Judgment affirmed.

Felton, C. J., Bell, P. J., Jordan, Hall, Deen and Quillian, JJ., concur. Frankum, Eberhardt and Pan-nett, JJ., dissent.