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Arnold N. May Builders, Inc. v. Bruketta

OPINION FILED JUNE 15, 1978.

ARNOLD N. MAY BUILDERS, INC., PLAINTIFF-APPELLANT,

v.

NICK S. BRUKETTA, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Fulton County; the Hon. WILLIAM R. RANDOLPH, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

On May 24, 1972, Arnold N. May Builders, Inc., entered into a contract with Nick S. Bruketta for the construction of a cattle confinement building on Bruketta's farm. Mr. Bruketta was in the cattle feeding and sale business. The contract price was $18,472 payable on the following terms: $1,472 on signing of the agreement, $8,500 when the building materials were delivered to the job site, and $8,500 upon completion of the structure.

Bruketta agreed to construct the foundation for the building, and Carl Johnson, an agent for Arnold N. May Builders, Inc., entered into an agreement with a subcontractor, Wayne Cramer, to erect the building over Bruketta's foundation. Thereafter, the building materials were shipped to the Bruketta farm and arrived at the job site sometime during the last two weeks of July or the first week of August.

Work on the building was scheduled to be done in August or September of 1972. The record is not clear what caused the construction delays, but it does reveal that work was not begun by the subcontractor and Mr. Bruketta and Bruketta's sons until November 4, 1972. Progress on the structure was unsatisfactory through the months of November, December, and January, and finally, in February, 1973, employees of May Builders came in and took over the construction project. Mr. Bruketta and his sons continued to work for the May Builders' crew and the building was completed at the beginning of April.

In apparent reliance upon representations that the building would be completed within approximately five weeks after construction began, Bruketta purchased 322 head of cattle from October 25, 1972, through November 2, 1972. Until the building was completed Bruketta only had an open feed lot to maintain these newly acquired cattle. What is more, that feed lot had not been properly prepared for "wintering" cattle, because again, Bruketta relied upon representations that the building would be complete before the severest winter months of January, February and March.

After May Builders submitted its final invoice of $8,500 to Bruketta, efforts were made by the parties to arrive at a final balance, giving Bruketta credit for labor and materials he had expended. An agreement could not be reached, however, and suit was finally instituted by May Builders to recover. Bruketta responded with a counterclaim for the value of his labor and materials, and also for damages to his cattle which were exposed to winter weather in an open feed lot. Bruketta alleges that the death rate among his herd and the rate of weight gain among the survivors were adversely affected by the exposure.

At trial, the plaintiff, May Builders, stipulated that Bruketta was entitled to a credit for his labor in the amount of $1,779.79. The question of whether any additional credits would be allowable was submitted to the jury as a part of defendant Bruketta's counterclaim. The jury returned its verdict increasing the credit for labor and material by $4,575.61 and, in addition, assessed damages to defendant's cattle in the amount of $19,907.90.

The plaintiff appeals from the verdict on the counterclaim alleging certain errors in admission of evidence at the trial. Specifically plaintiff objected to: (1) testimony by defendant which established an alleged causal connection between exposure to the winter elements and an adverse death rate and rate of weight gain among the herd; and also, testimony by defendant which established the alleged measure of damages suffered by defendant.

The defendant testified that he usually ran herds of cattle through the winter months of from 300 to 500 head, and with proper preparation of the open feed lot in past years his losses were from one to two head of cattle each winter. However, during the winter period in question defendant lost 14 head of cattle. Defendant testified that during the winter in question, that is 1972-1973, he did not prepare the open feed lot as he usually did in reliance on plaintiff's representations as to when the confinement building would be completed.

The following colloquy occurred between defendant and defense counsel:

"Q: Do you have an opinion as to what caused these cattle to die, those 14 you testified to, in January, February, and March, 1973?

A: What made these 14 die?

Q: Yes, do you have an ...


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