Diamond Swimming Pool Co. v. Broome ( 1969 )

Brailsford, Justice

(dissenting).

I respectfully dissent from so much of the opinion of Justice LITTLEJOHN as sustains the allowance to the defendants of an offset of only $1275.00. There has been no appeal from the Master’s conclusion that the patio is defective and that defendants are entitled to an offset. The question is the amount to be allowed. The only testimony on the point is that of the defendants’ expert witness who testified that the defective condition can be remedied only by tearing out the concrete and replacing it with concrete of proper finish and stripping. He estimated the cost at $3385.00.

I agree that the Master was not bound to accept the estimate of defendants’ expert. However, he was not authorized to fasten upon another figure which has no support in the evidence. We cannot properly award judgment on the basis of the testimony of defendants’ expert, which the Master has discredited. Nor, on this record, can we intelligently review the Master’s naked conclusion that the defendants are entitled to a setoff of $1275.00. In my view, defendants’ exception to the amount allowed should be sustained and the case remanded for a new trial on this issue.

Bussey, J., concurs.