Simmons v. Boros , 176 Ga. App. 346 ( 1985 )

Beasley, Judge,

dissenting.

The defendant moved for a directed verdict on the grounds that there was no evidence of damages attributable to defendant’s work on the vehicle and no evidence of plaintiff’s ownership of the vehicle. The latter basis was properly rejected, as there was some evidence in that regard. As to the first basis, however, the court found that with respect to proof of damages, there was no evidence showing the value of the vehicle before the repairs and concluded that this was a fatal omission. Consequently, the court granted the motion made at the end of plaintiff’s case.

Although plaintiff’s amended complaint contained both tort and contract claims, his position throughout the trial was that he was proceeding on a breach of the contract to repair and breach of the 60-day or 6000-mile warranty that was part of the contract. The contract was partially oral and partially in a written repair order which outlined what was ordered, what work was performed, what parts were supplied, and the amounts charged and paid. In essence, as demonstrated by the documents and testimony presented by plaintiff, the agreement was for defendant to overhaul the motor and give the warranty, in consideration for $500 plus the cost of parts. Plaintiff paid $1,372.96 for this work and warranty. He testified about the immediate and continuing problems thereafter, the inoperable condition of the car, and his ultimate obtaining of an analysis and cost breakdown from Troncalli Motors for repairing the engine. The analysis identified certain “discrepancies on your engine” which impliedly were occasioned by defendant. The service operations manager who provided the written analysis testified about it and about the written cost estimate, which was $1,763.17.

In considering the motion for directed verdict, the court did recite in essence the measure of damages for breach of contract set out in OCGA § 13-6-2. However, the court did not apply it or the principle contained in OCGA § 13-6-1: “Damages are given as compensation for the injury sustained as a result of the breach of a contract.”

Instead, the court departed from contract damage principles and based its ruling on the measure of damages in cases involving the tort of negligence. The court specifically relied upon General GMC Trucks v. Crockett, 145 Ga. App. 503 (2) (244 SE2d 78) (1978), a tort case, for the proposition that plaintiff must prove that the cost of repairs does not exceed the value of the vehicle before the injury.

While it is true that there was no evidence of value of the vehicle before the defendant undertook the repairs, the law of contracts does not require proof of such a fact as part of plaintiff’s prima facie case on the element of damages. The measure for breach of contract of repair or warranty is not the difference in the value before and after the allegedly defective or uncompleted repair, or the cost of repair so long as it does not exceed what the value of the property was before the defendant worked on the property. If that were the case, a mechanic could agree to do a $1,000 repair job on a car worth $1,000 before the work was done, do it defectively or not at all and get paid the $1,000, and because the car was still only worth $1,000 in its unrepaired or improperly repaired condition, be liable for nothing because correcting his work or doing it right by starting again would cost over $1,000.

As the trial judge initially pointed out, and as the majority recognized, the measure of damages for breach of what the repairman agreed to do is governed by OCGA § 13-6-2. In other words, the contracting party is entitled to the benefit bargained for, i.e., compensatory damages, and the measure for defective workmanship would be the cost, over and above what was already paid to defendant, to get the work done in conformity to the contract. As explained more fully in Adamson Co. v. Owens-Ill. Dev. Corp., 168 Ga. App. 654, 657 (309 SE2d 913) (1983), “the measure of damages for breach of contract is the monetary amount which will compensate the injured person which a fulfillment of the contract would have prevented or the breach of it entailed and place the person in the position in which he would have been if the contract had been fully performed.”¹ Thus the plaintiff would be entitled to the costs reasonably necessary to achieve fulfillment of the defendant’s promises, for which plaintiff had already paid in full. “Any necessary expense which one of two contracting parties incurs in complying with the contract may be recovered as damages.” OCGA § 13-6-9.

Decided September 13, 1985 Rehearing denied October 7, 1985 Bobby D. Simmons, pro se. Joseph C. Rary, for appellee.

In this case there was some evidence of that, and the absence of evidence regarding the value of the car before defendant undertook to repair it was not fatal. Under the circumstances, the question of damages is one for the trier of fact, Tuten v. Beckham, 162 Ga. App. 101 (290 SE2d 205) (1982), and consequently, I would conclude that the trial court erred in granting a directed verdict to defendant.

1 See also Accent Walls v. Parker, 162 Ga. App. 633 (1) (292 SE2d 509) (1982).