The defendant now complains that the trial, judge erred in failing to grant a new trial, in computing the amount of the remittitur, in awarding attorney's fees, and in allowing the jury to compute damages from the first contract made between the parties. The facts of this case are more fully recited in the district court's opinion reported at 447 F. Supp. 1337 (S.D.Ga. 1978). The defendants and the plaintiff are both in the business of selling lumber.
However, the case law indicates that Georgia applies its attorneys' fees statute to contract claims, as well as tort claims. See Fratelli Gardino, S.P.A. v. Caribbean Lumber Co., 447 F. Supp. 1337, 1340-41 (S.D.Ga. 1978), aff'd in part, rev'd in part, 587 F.2d 204 (5th Cir. 1979); Spicer v. American Home Assurance Co., 292 F. Supp. 27, 34 (N.D.Ga. 1967), aff'd, 402 F.2d 988 (5th Cir. 1968), cert. denied, 394 U.S. 946, 89 S.Ct. 1275, 22 L.Ed.2d 479 (1969). Indeed, O.C.G.A. § 13-6-11 is set forth in the Contracts title of the Georgia Code. Hence, the jury was authorized to find the requisite bad faith with respect to the contract theory and award fees on that basis alone.
"Abuse of discretion exists if the jury verdict was clearly within the ambit of possible awards supported by the evidence." Fratelli Gardeno, S. p. A. v. Caribbean Lumber Co., Inc., 447 F. Supp. 1337, 1343 (S.D.Ga. 1978) (citing Bonura v. Sea Land Service, Inc., 505 F.2d 665, 670 (5th Cir. 1974)). After carefully considering the record, we are left with no choice but to invalidate the judge's conditional grant of a motion for a new trial as based on an improper assessment of the evidence introduced at trial.
It is essential, however, that the judge be able to determine whether, when, and why PIPSA and TMI ever agreed to modify the contract price and to assess damages based on the agreed price. Cf. Gardino v. Caribbean Lumber Co., 447 F. Supp. 1337, 1342 (S.D. Ga. 1978) (damages based on original, lower contract price when seller breached amended contract). 3. Evidentiary rulings. What we have already said perhaps sufficiently disposes of the present appeal.