This was a suit to recover the full contract price paid by the plaintiff to the defendant for the construction of a fallout shelter. On the trial of the case before the court without a jury, the plaintiff testified that after the shelter had been completed and full payment made to the defendant, water began to accumulate therein; that the defendant in spite of repeated demands refused to correct the situation; and that because of the accumulation of water, the shelter was wholly unfit for the use intended and there had been a total failure of consideration. The defendant contractor testified that the plaintiff had made only two complaints concerning the shelter, first about an accumulation of water and later about a sticky door; that on each occasion workmen were sent to investigate and correct the condition complained of; and that thereafter no further complaints were received but that the plaintiff did subsequently inquire as to the feasibility and estimated cast of removing the shelter to another location. The evidence showed that the plaintiff did not own the land upon which the shelter was constructed and that prior to the institution of suit, he moved away from the premises. The contract did not contain a guarantee that the shelter would be moisture-proof.
The trial court entered judgment for the defendant and the plaintiff has appealed to this court on the ground that the judgment was without evidence to support it. Held:
While the evidence was conflicting in same particulars, a verdict for the defendant was fully authorized by the evidence; and the trial court, sitting as the trier of both law and fact did not err in entering judgment in his favor. Porter v. Wilder & Son, 62 Ga. 520 (5).
John C. Lee, Stone & Stone, Hugh W. Stone, for appellee.