Batson-Cook Co. v. Loden Co.

Full title: BATSON-COOK COMPANY v. LODEN COMPANY, INC

Court: Court of Appeals of Georgia

Date published: Jul 13, 1973

199 S.E.2d 591 (Ga. Ct. App. 1973)

199 S.E.2d 591

Opinion

48318.

ARGUED JULY 2, 1973.

DECIDED JULY 13, 1973.

Action on contract. Fulton Civil Court. Before Judge Wright.

Glover Davis, Welborn B. Davis, Jr., for appellant.

Archer, Patrick Sidener, Griffin Patrick, Jr., Charles F. Reeves, for appellee.

1. On an action by a subcontractor against a contractor for extra compensation based on the theory that extraordinarily rigid requirements by the architect and inspectors caused the plaintiff extra labor and expense in culling out bricks, a fact issue was presented as to whether the requirements accorded with or were higher than those in the general specifications. The evidence was sufficient to authorize a verdict in favor of the plaintiff.

2. A portion of the charge not excepted to in the trial court will not be considered by this court.

3. The testimony of the plaintiff's executive officer in charge of performance of the contract was properly admitted, the amount of damages was supported by proof, and the plaintiff was not precluded from prosecuting this claim because of failure to comply literally with certain provisions in the general contract relating to proof of claim.

ARGUED JULY 2, 1973 — DECIDED JULY 13, 1973.

The plaintiff Loden Company, Inc. was a subcontractor of Batson-Cook Co., a general contractor employed by the City of Atlanta to construct the Lakewood Stadium, and, in particular as regards this lawsuit, to lay certain brick walls. Prior samples were offered for inspection. The parties were then informed by the architect that the sample was approved "with the exception that several of the masonry units have been chipped, in violation of paragraph 4A-01F of the Specifications. We must notify you at this time that brick with chipped or damaged faces shall not be laid up on this project." The defendant, referring to the architect's recommendation, then wrote the plaintiff who had forwarded and endorsed the decision: "The contractor is advised to exercise the greatest care in selecting brick to be laid up in order that chips and deformations may be kept to a minimum on the fluted side. Several of the bricks shown in the sample had chips larger than will be accepted in the finished product... Please be governed accordingly." The plaintiff replied, pointing out that this would involve extra culling of bricks and would result "in all probability in a surplus of brick which meet requirements of the specifications but which cannot be used in the wall nor returned to the factory. Furthermore, the extra time required to cull out these brick would cost us additional money in labor as well as the aforementioned material." Defendant replied that "you cannot take exception or deny responsibility in this case. The contract requirements have not changed, in that the face brick were originally specified to be laid with the back face exposed. We shall therefore expect you to continue to perform your contract in accordance with the contract documents."

The architect who had written the original letter testified that he had been mistaken in informing the plaintiff that no chipped brick should be laid up; what he meant was chips larger than those allowed by the specifications. The plaintiff's job superintendent testified that the inspector insisted on "no chips"; that inspections were rigid, that 500 to 1000 bricks had to be removed on account of chips, and that, to continue with the work, and meet inspections, all bricks had to be culled and those with more than very minimal chips discarded. Some 144,000 bricks were laid and rejects thrown out, lowered to the ground, restacked, rebanded, and returned to the warehouse. 35,400 bricks were culled out, although not all of these were rejected simply because of chips. A high percentage of the rejects, based on inspection requirements, met standard specifications.

The plaintiff made a claim for extra compensation to the defendant, which referred it to the owner and on its being rejected by the owner in turn refused to pay. This action was then filed, and the jury returned a verdict in favor of the plaintiff from which the defendant appeals.

DEEN, Judge.

1. The defendant contends that the verdict is not supported by evidence generally because (a) there is no evidence that the plaintiff performed extra work because there is no evidence of excessive chippage; (b) what work the plaintiff performed in this regard was demanded by the original contract specifications and was not extra work; (c) notice of intention to claim extra compensation was not given as required by the contract; (d) no monetary amount of damages was shown. As to the first two contentions, the evidence set out in the statement of facts is sufficient to raise a jury question as to whether or not the plaintiff was held to a higher rate of performance than the specifications called for. This depended entirely on whom the jury chose to believe, and we will not interfere with the result. The question of damages will be dealt with in the third division of this opinion. As to notice requirements, involving enumerations of error 3, 6 and 7, it is true that written notice of intention to claim extra compensation was required by the general provisions of the document signed by the owner and general contractor, and that the provisions of this contract were incorporated by reference into the contract between the plaintiff and defendant. The notice was required to be given prior to the execution of the work by Article 16 of the Standard Form General Conditions. Plaintiff did give notice that the requirement stated would in all probability result in labor and materials above contract specifications. The defendant denied this. Thereafter, according to disputed evidence offered by the plaintiff, it was as a matter of fact forced to do excessive culling, and this did as a matter of fact result in higher costs, as he had informed the defendant it probably would. Provisions as to notice must be reasonably construed. Cf. Clark v. Belleau, 114 Ga. App. 587 (2) ( 151 S.E.2d 894); State Hwy. Dept. v. Hall Paving Co., 127 Ga. App. 625 ( 194 S.E.2d 493). The trial court properly refused a request to charge the jury that, unless they found the notice "clear, definite, explicit and not ambiguous" they would be required to return a verdict for the defendant. Since the plaintiff had already stated its opinion in regard to a situation the determination of which was still in the future (that is, that compliance with the architect's demands would result in extra work) the statement of the defendant to the contrary (contract requirements have not changed) did not require an answer, and it was proper to refuse a request to charge, in the language of Code § 38-120, as to the presumption arising from failure to reply to a letter where good faith requires an answer.

2. No objection having been made to the charge complained of in the 8th enumeration of error, it will not be considered here. Lane v. Morrison, 124 Ga. App. 316 (1) ( 183 S.E.2d 533).

3. In the fifth enumeration of error the appellant urges that damages were not proved in the manner specified in the contract. In the ninth he complains of evidence admitted on the question of extra cost. In the latter regard Harmon, the foreman or job superintendent, and Loden, who were personally seeing the project through, both testified in some detail as to the procedures used for culling the bricks in order to meet inspection standards in regard to chipping and "fluting." Twice the court sustained objections to testimony of Loden as to any culling he had not personally watched being done. Since there were figures on the usual rate of defective bricks, the rate on this job, its relation to culling requirements, and the value in time and material so expended, a sufficient foundation had been laid. The specific objection came somewhat later in Loden's testimony when he was asked: "Based upon your experience in the past and the time and so forth, that you have testified to, what was the cost to your company of the extra work you performed on this contract?" and the witness replied: "I stated 35,400 brick were culled out because of chippage... The total cost, as I calculated it, was $12,653.12." Mulherin, another witness who qualified as an expert, testified that specifications allowed 5% cullage, but normally there would probably be two or three percent. Evidence is relevant where it relates directly or indirectly to the question being tried. Gallant v. Gallant, 223 Ga. 397 ( 156 S.E.2d 61); Tifton T. G. R. Co. v. Butler, 4 Ga. App. 191 ( 60 S.E. 1087); A. A. A. Hwy. Exp. v. Hagler, 72 Ga. App. 519 ( 34 S.E.2d 462). The jury may infer the existence of facts reasonably and logically consequent on those proved. Stephens v. Wilson, 58 Ga. App. 24 ( 197 S.E. 350). There was sufficient evidence to warrant an inference that the amount of culling necessitated by the architect's requirements as enforced on subsequent inspections increased the cost in amount of the verdict. Obviously, the circumstances are not exactly those contemplated by articles 15 and 16 of the general conditions in the prime contract and incorporated by reference in the subcontract, where, to make a claim valid, the contractor is obligated to figure extra cost for future work to be done, and then procure a written order from the owner signed by the architect, and thereafter determine the amount, if in dispute, by presenting vouchers supporting the cost plus a further amount for overhead. The defendant was as well informed as the plaintiff on what was being required; the question basically is not how much it would cost but whether or not it was a requirement over and above contract specifications. The testimony of Loden was admissible, and there was no deviation from the contract such as to invalidate the claim.

Judgment affirmed. Bell, C. J., and Quillian, J., concur.