Bailey v. Lurlee, Inc.

131 Ga. App. 546 (1974) 206 S.E.2d 529

BAILEY
v.
LURLEE, INC. et al.

48986.

Court of Appeals of Georgia.

Argued January 14, 1974. Decided April 2, 1974.

Dock H. Davis, for appellant.

Howard, Wiggins & Smith, James C. Howard, Jr., for appellees.

PANNELL, Judge.

This is an action by a plaintiff subcontractor seeking a judgment for work performed in installing acoustical ceilings and dry walls in two buildings erected by the defendant contractor and for foreclosure of a materialman's lien. The trial judge, sitting without a jury, found as a fact that the appellee, Lurlee, Inc., had paid a sum in excess of the amount owed by the defendant to the plaintiff and granted a motion to dismiss the foreclosure of the materialman's lien. A motion for new trial was filed and denied. Appellant appeals from the trial court's findings of fact and from the denial of the motion for a new trial. Held:

It is the duty of an appellate court to construe the evidence mostly strongly in support of the verdict and against the appellant. Associated Mutuals, Inc. v. Pope Lumber Co., 200 Ga. 487, 496 (37 SE2d 393). That the evidence in a case may preponderate against a verdict is not the test. The rule is that this court cannot review the findings of juries, or judges, on issues of fact, unless, as a matter of law, a verdict has no evidence to support it. Charles v. Brooker, 1 Ga. App. 219, 220 (58 S.E. 218); Lester Colodny Constr. Co., Inc. v. Allen, 129 Ga. App. 545 (199 SE2d 917). In the case sub judice, there is evidence to support the court's finding that Lurlee, Inc., paid a sum in excess of the amount owed to appellant. The judgment must, therefore, be affirmed. The enumeration of error with reference to the trial court's denial of a motion for new trial suffers from the same infirmity and is without merit.

Judgment affirmed. Eberhardt, P. J., concurs. Evans, J., concurs in the judgment only.