Comtrol, Inc. v. H-K Corp. , 134 Ga. App. 349 ( 1975 )

Deen, Presiding Judge,

dissenting.

I agree with the majority opinion that the findings of the trial judge amount to a jury verdict, and that the trial judge in effect ruled that the plaintiff had failed to carry its burden of proof. (The language of the order is: "The plaintiff has not proved his damages as required by Section 20-1406.”) I also agree that this is true of the installation fee and the savings contended for, if H-K Corp. had adopted Comtrol’s recommendations, which, however it did not and was not legally bound to do.

What remains is not a question of fact but one of law. It is undisputed that Comtrol discovered overbilling in the sum of $306.05 per month, reported it, and the telephone company acknowledged and repaid the money to the consumer, and the consumer paid half the sum received to the plaintiff. This amounted to half the overbilling for a seven-month period, and the question is the proper construction of a contract provision, on the happening of such an event, that H-K agreed to pay one-half of any refunds upon receipt thereof and also "50% of the monthly savings achieved during 60 months of service as a result of . . . corrected overbilling.”

The question is simple. Does the client H-K owe only oné-half the amount refunded by the telephone company or does it owe 50% of the savings resulting from corrected overbilling for 60 months? The monthly amount of overbilling has already been established; there is no need, as the majority opinion insists, to "conduct monthly reviews to determine the amount actually saved.” That amount was ascertained when the overbilling was discovered and corrected. As to the idea that at some future time the telephone company might have discovered and corrected the overcharge on its own, such an eventuality is certainly possible. But it has nothing to do with the defendant’s promise that, if Comtrol did discover and have any overbilling in fact corrected (as this was) then the client would pay "50% of the monthly savings achieved. . . as a result of. . . corrected overbilling.” The monthly savings are determined by the amount of overcharge, and when that overcharge was discovered and corrected the defendant under its agreement was liable to the plaintiff for an amount equal to half such sum over a period of 60 months. This is not a question of fact but a question of law as to the construction of the contract provision insofar as it relates to corrected overbilling only. When the defendant signed the contract it was doubtless well aware that corrected overbilling, if it had not been discovered by the plaintiff, might some time or other be discovered by somebody else — perhaps the defendant, perhaps the user, perhaps simply by accident. The point is that the defendant agreed that i/the plaintiff discovered it, and if it resulted in a monthly savings by reason of being corrected by the telephone company, in that event the defendant would pay half of such monthly corrected overcharge to the plaintiff for a period of 60 months. This it has failed to do. "It is not necessarily true that where one person contracts with another for the performance of services, his liability does not become fixed until after such services are performed. This is a matter which may be governed entirely by contract.” Phinizy v. Bush, 135 Ga. 678, 679 (70 SE 243). There was no burden on the plaintiff, after proving discovery of overcharge by it and correction by the telephone company, to take on the impossible task of proving that nobody else might have turned up the same error at some undisclosed future time.

I am authorized to state that Judge Evans concurs in this dissent.