In fact, Taylor has been specifically cited as good law by at least one post-codification Georgia court. See Southern Concrete Prods., v. L.A. Martin, 126 Ga.App. 534, 191 S.E.2d 314 (1972). There are other cases cited by both Holden and Sundance, some holding that repair costs were a sufficient measure of damages for O.C.G.A. § 11-2-714(2) purposes and others holding the opposite.
]" (Punctuation omitted.) Southern Concrete Prods. Co. v. Martin, 126 Ga. App. 534 (2) ( 191 S.E.2d 314) (1972). In addition, the use of the word "sham," while incorrect, was not blatantly prejudicial resulting in gross injustice.
But, in any event, based upon Ramsey Brick Sales Co. v. Outlaw, 152 Ga. App. 37, 39 (4), supra, the jury's verdict in favor of the plaintiff rendered harmless any error allegedly committed by the trial court in denying plaintiff's motion for directed verdict on the issue of liability. See also Southern Concrete Prods. Co. v. Martin, 126 Ga. App. 534 (1), 537 ( 191 S.E.2d 314). We find no merit in this complaint.
"Though the true measure of damages may not have been given in charge, no new trial is required if the verdict does not exceed the amount of damages which should have been found had the charge been correct." Rome Carrollton Constr. Co. v. Jennings, 85 Ga. 444, 445 ( 11 S.E. 839) (1890); Southern Concrete c. Co. v. Martin, 126 Ga. App. 534, 537-8 ( 191 S.E.2d 314) (1972); Roberts v. McClellan, 80 Ga. App. 199, 207-8 ( 55 S.E.2d 736) (1949). 12.
The denial of the plaintiffs' motion for directed verdict on the counterclaim and of their motion for new trial was authorized by the evidence. Accord, Sou. Concrete Prod. Co. v. Martin, 126 Ga. App. 534 (1) ( 191 S.E.2d 314) (1972). 5. The defendants contend in their cross appeal that the court erred in not charging the jury on fraud, negligence and punitive damages.
5. Whether or not the trial court should have considered defendant's counterclaim for damages also remains for determination after the trial court makes a decision as to the alleged expressed and implied warranties and/or defense of total or partial failure of consideration herein. See Southern Concrete Products Co. v. Martin, 126 Ga. App. 534 (1) ( 191 S.E.2d 314); Austin Lee Corp. v. Cascades Motel, Inc., 123 Ga. App. 642, 644 (4) ( 182 S.E.2d 173). Judgment reversed. Quillian, P. J., and Webb, J., concur.
There was expert testimony that normally a forklift of this type was depreciated over a three-year period so that its value reduced from $9,700 at the beginning of the lease was $1 at the expiration of the lease. Considered as a sale, the buyer (Talmadge) could likewise recover the difference between the value of the equipment accepted and the value the equipment would have had if the equipment had been as warranted unless special circumstances showed proximate damages of a different amount, as defined under Code Ann. § 109A-2-714 (Ga. L. 1962, pp. 156, 230). Southern Concrete Products Co. v. Martin, 126 Ga. App. 534 (1) ( 191 S.E.2d 314). A jury verdict will not be disturbed unless clearly erroneous and, construing all evidence and resolving all doubt in favor of the verdict and judgment, there was evidence to support same. Smith v. Leader Lincoln-Mercury, Inc., 137 Ga. App. 239 ( 223 S.E.2d 274). The judgment must be affirmed. Judgment affirmed. Bell, C. J., and Smith, J., concur.
Increased production costs are unquestionably proper items of recovery as consequential damages when adequately attributed to a breach. See, e.g., Guy James Construction Co. v. Trinity Industries, 644 F.2d 525 (5th Cir. 1981) (Georgia law), modified 650 F.2d 93 (5th Cir. 1981); Bennett v. Smith, 245 Ga. 725, 267 S.E.2d 19 (1980); Buck Creek Industries, Inc. v. Williams-East, Inc., 130 Ga. App. 813, 204 S.E.2d 787 (1974); Southern Concrete Products Co. v. Martin, 126 Ga. App. 534, 191 S.E.2d 314 (1972). Before and after enactment of the Uniform Commercial Code in Georgia, the rule preventing recovery of "speculative" damages referred "more especially to the uncertainty as to the cause, rather than uncertainty as to the measure or extent of damages."
Labor and repair expenses are properly recoverable as incidental and consequential damages. Ga. Code Ann. § 109A-2-715; see Southern Concrete Products Co. v. Martin, 126 Ga. App. 534, 191 S.E.2d 314 (1972). This conclusion is also supported by the principle that the law is a respecter of property and should encourage its preservation.
Adams [president of defendant buyer] further testified that they telephoned and complained to plaintiff about the material but were told that they would do nothing and that `we were stuck with it'. Adams then testified that they continued to accept delivery of the aluminum and rejected none of it, that they purchased some special machinery and by performing a second machining operation they were able to overcome the instability problem and produce acceptable parts . . . Defendant Adams testified that the defendant corporation had sustained a fire loss for which there was an unsettled insurance claim; that they did not deny they owed the debt to plaintiff evidenced by the notes; and that `we were willing to pay if they went along with us until we got our insurance settlement.' Other relevant citations involving a construction of U.C.C. § 2-607(3)(a) are United States v. Crawford, 443 F.2d 611 (5 Cir., 1971); Southern Concrete Products Company v. Martin, 126 Ga. App. 534, 191 S.E.2d 314 (1972); Coast Scopitone, Inc. v. Self, 127 Ga. App. 124, 192 S.E.2d 513 (1972); Economy Forms Corporation v. Kandy, Inc., 391 F. Supp. 944 (N.D.Ga., Rome Div., 1972). In light of the law as stated above construing § 2-607(3)(a) of the Georgia version of the Uniform Commercial Code the Court holds as a matter of law that Metro did not give effective notice to Clow of any contented breach and is, therefore, barred from any remedy, including its asserted counterclaim.