Concrete Materials of Georgia, Inc. v. Smith & Plaster Co. , 127 Ga. App. 817 ( 1973 )

Deen, Judge,

dissenting. Under the testimony here which shows that the defendant was cognizant of the purpose for which the building was erected, it could reasonably anticipate that damages would result from delay in completion. The court specifically instructed the jury that, even though they should find the defendant breached its contract, if the damages sought to be recovered were not such as contemplated when the contract was made as the probable result of a breach, the defendant would not be liable. The evidence establishes that Lurlee and Scott-Foresman entered into a settlement agreement in which this element of damages was a factor, and that Lurlee backcharged its losses against Smith & Plaster from the amounts owing for the building contract. In my opinion these issues were properly submitted to the jury.

I am authorized to state that Judges Evans and Clark concur in this dissent.