Domenicone v. Carl E. Jones Development, Inc.

326 S.E.2d 548, 173 Ga. App. 351, 1985 Ga. App. LEXIS 1538

Opinions

Birdsong, Presiding Judge.

This appeal is from a jury verdict in favor of the defendant Carl E. Jones Development, Inc. in a suit on defects in a new house. The owner of the company also had personally agreed to fix twelve certain items, and provided for liquidated damages for his failure to do so; this agreement was duly performed. However, the suit, as it was submitted to the jury, was based only on breach of an express warranty of fitness by the company. Accordingly, it was clearly error and misleading for the trial court to charge the jury as to accord and satisfaction and liquidated damages, where there was no such evidence relating to the only claim before the jury. Since the jury returned a verdict for the defendant, we cannot say the error was harmless. See, as to harmful error, Carpenter v. State, 167 Ga. App. 634, 641 (307 SE2d 19).

Judgment reversed.

Carley, J., concurs. Beasley, J., concurs specially.