This is an appeal and cross-appeal on a claim and counter-claim wherein a Fulton County jury found for plaintiff homeowners Donna Jones Daley and Raymond Daley “Daleys” against defendant seller/builder Ryland Group, Inc. “Ryland”, on their complaint for breach of a building contract, negligent construction, and breach of warranty; the jury found for Ryland on its counter-claim alleging breach of an agreement entered into at closing regarding the installation of granite counter tops in the kitchen of the Daleys’ house. For the reasons that follow, we affirm the trial court’s partial JNOV and denial of a motion for new trial.
Viewed in a light to uphold the jury’s’ verdict,1 Ryland built the Daleys’ “Master’s Collection” house pursuant to a contractual agreement entered into in June of 1994. The contract was amended in order to include the purchase and installation of Baltic Brown granite counter tops in the kitchen of the house. The counter tops were installed at the completion of construction so that they would not be damaged by the subcontractors working on other parts of the house. The Daleys saw the counter tops for the first time the day before closing. Ryland had installed 3 cm thick Dakota Mahogany counter tops with granite overhangs on the edges of the counters. The color was unsatisfactory to the Daleys and not as specified. Ryland agreed that the counter top installation was incorrect because of the color; however, rather than delay closing, Ryland and the Daleys agreed to hold in escrow $8,000 out of the purchase price, pending installation of Baltic Brown granite counter tops.
