IVEY v. ELECTRICAL SUPPLIES, INC

Electrical Supplies, Inc. (whom we shall call the plaintiff) filed suit against H. W. Ivey d/b/a H. W. Ivey Construction Company (hereinafter called the defendant). The proceedings sought judgment against the defendant for $3,108.95 and a special lien for material furnished by the plaintiff. The case was tried in the Civil Court of Fulton County before a judge and a jury. The jury returned a verdict in favor of the plaintiff and a judgment was rendered thereon. The defendant filed a motion for a new trial on the statutory grounds only. The court denied this motion, and on this judgment the defendant assigns error here.

Briefly but substantially the allegations and the facts are: that the defendant owned an improved tract of land on Peachtree Street; that on that tract the defendant began the construction of business buildings; that the defendant made a contract with Bagley to install certain electrical equipment; that the contract between the defendant and Bagley provided for a specified price for material and labor; that the contract provided for a specified amount plus $6 each for additional outlets; that the defendant had leased one of the units to a shoe concern and another to a dress concern; that Bagley entered into the performance of his contract with the defendant and had completed the installation of a main electrical line to the defendant's property and had also connected the outlets to this main line; that the shoe-concern tenant had moved into the building; that the city electrical inspectors then condemned the work of Bagley on the ground that the main line was insufficient to carry the electrical load; that the decision of the electrical inspectors was made because of the unusual number of outlets required by the tenant; that the inspectors required of the defendant that a parallel main line be installed to take care of the overloaded condition on the main line installed by Bagley; that the defendant, instead of permitting Bagley to complete the work, employed another electrical concern, namely Bales Womack, hereinafter designated as Womack. When the work was completed by Womack the defendant refused to pay the plaintiff the balance due on the contract originally made by Bagley and finished by Womack. Thereupon the plaintiff instituted these proceedings. At the time Womack was completing this work he was doing other electrical work on other projects for the defendant, which other work had no connection with the work now under consideration.

GARDNER, P. J.

It is the contention of the defendant, (1) that he did not owe the plaintiff any amount because he had paid all amounts due, and (2) that the plaintiff was not entitled to a lien because the claim of lien was not filed within ninety days as provided by statute. On the other hand, the plaintiff contends that by evidence it had established the fact that the amount which the defendant claimed he had paid on the contract was for other work done on other projects of the defendant, and that the claim for lien was filed within the ninety days time required by the statute.

The evidence was in sharp conflict on each of the issues. The pleadings and the evidence are ample to authorize the jury to return the verdict in favor of the plaintiff. We have no doubt, from a recheck of the entire record, that the court was authorized, and it was the court's duty, to submit these issues of fact to the jury. There is apparently little conflict between distinguished counsel for both sides as to the correctness of law submitted by each of them, but there is a great variance between them as to whether the principles of law submitted by each of them are applicable to the facts involved. From the judgment rendered by the trial judge, no doubt he gave much study to this record in its entirety. He rendered an able opinion in his judgment denying the motion for a new trial, and we rest the finality of this case before us on the opinion rendered by Judge A. L. Henson, as follows: "On the motion for a new trial, argued and submitted: If the evidence compelled a finding that the work finally done and materials furnished was as provided in the contract, or that the parties to the contract were able at the time or times when additional inserts were ordered to be installed, or additional work done, to fix the ultimate contract price, the rule announced in Green v. Farrar Lumber Company, 119 Ga. 33, would govern. But there is an issue of fact with respect to this. Then, too, there was an issue as to whether Ivey's rescission of the contract had a sound factual basis.

"`What shall come to the jury as evidence is for the court', says Justice Bleckley. `What it is worth when it arrives is for the jury.' Moughon v. State, 57 Ga. 106. And in Central, c. v. Ferguson, 63 Ga. 85, this great jurist says that the jury are the best doctors of doubt he knows of.

"To grant a new trial would be tantamount to taking the case from the jury. Chief Justice Russell, when a member of the Court of Appeals, and in the second case to come before that court, illustrates graphically when it becomes the duty of the court to do so. Davis v. Kirkland, 1 Ga. App. 5.

"Considered, ordered and adjudged, therefore, that the motion for a new trial be overruled and a new trial denied."

Judgment affirmed. Townsend and Carlisle, JJ., concur.