Opinion
34766.
DECIDED OCTOBER 24, 1953.
Action on account. Before Judge Blackshear. Hall City Court. June 13, 1953.
Telford, Wayne Smith, for plaintiff in error.
Frank B. Stow, Robert E. Andrews, contra.
1. The only evidence tending to sustain two of the three items of the account sued on was the testimony of a witness who, having access to the plaintiff's books, testified as to what the books showed, and not from his own personal knowledge, as to the correctness of the account. This evidence was objectionable as hearsay. Nor could the account be proved by introducing a copy of the account in evidence.
2. The admission in evidence of certain documents was not harmful error, as other testimony to the same effect had been introduced without objection.
3. The evidence authorized a verdict for only one item of the account sued on, and the judgment denying a new trial is affirmed on condition that the plaintiff write off the amount of the other two items of the account from the judgment rendered, the verdict for these items being unauthorized by the evidence.
DECIDED OCTOBER 24, 1953.
American Appraisal Company sued W. W. Faw, doing business as Faw Hotels, in the City Court of Hall County, on an account, which was as follows: "To services: Appraisal of the property of the Monson Hotel, St. Augustine, Florida. 12 1/2 days at $50.00 . . . $625.00. Expenses . . . $118.62. Office Charge . . . $250.00. [Total] $993.62." The defendant filed an answer, denying that he was indebted to the plaintiff on the account sued on. The case proceeded to trial, and the jury returned a verdict for the plaintiff for $993.62, the amount sued for. The defendant made a motion for new trial, which was denied, and the exception here is to that judgment.
H. R. Moore, district manager of the Atlanta office of American Appraisal Company, testified: that he and W. W. Faw had a telephone conversation on November 19, 1949, at which time it was agreed by them for American Appraisal Company to make an appraisal for W. W. Faw of the Monson Hotel in St. Augustine, Florida, which was owned by Faw; that Faw wanted the appraisal for the purpose of establishing a sale price of the Monson Hotel to the stockholders of the John Sevier Hotel, Johnson City, Tennessee, of which he was also a stockholder; that Faw did not say that he wanted the appraisal by any particular time, but asked when the company could start on it and said he wanted it as soon as he could get it; that the witness notified his company that day to promptly place men on the work of appraising the hotel, and also wrote Mr. Faw on that date, advising him that he had notified the home office of his company to promptly assign men on this job; that he did not do the appraisal work himself and did not know what expenses were incurred in this transaction; that, when the report of the appraisal was completed in the latter part of February or the first of March, 1950, he took it to Gainesville, Georgia, and attempted to deliver it to Mr. Faw; but that Faw refused to accept it, and stated it was of no value to him at that time, as it was not furnished within the time agreed upon by him and the plaintiff company.
M. A. Pagel, an appraiser for the plaintiff company, testified by deposition: that he made a detailed appraisal of all of the personal property of the Monson Hotel on November 28, 29, 30, and December 1, 2, 3, and 4, giving the hours he worked, which amounted to 6 1/2 days; that Mr. Faw was present part of the time when he was making the appraisal, but said nothing about when he needed the report; that, when he completed his inventory of the personal property, he sent it to the home office of the company in Milwaukee, Wisconsin, to be typed and prepared for the final report.
H. F. Wilson, an appraiser for the plaintiff, testified by deposition: that he went to St. Augustine, Florida, and made an appraisal of the Monson Hotel building and the land, and worked for 7 days from November 21 to November 29 — testifying in detail as to the work he did in making the appraisal; that he then sent all of his findings and figures to the home office in Milwaukee, where the final appraisal report was to be made up for Mr. Faw; that Faw was present part of the time while the appraisal was being made, and seemed to think that they were spending too much time in that work, but did not specify or indicate any particular time when he wanted the appraisal; that the report was completed and ready for delivery to the defendant on February 28, 1950, but prior to that time the company had received a letter from Mr. Faw stating that he would not accept the report because of late delivery. The report was sent to H. R. Moore with instructions to deliver it personally to Mr. Faw. He then identified a copy of the invoice which accompanied the original report of appraisal, dated March 1, 1950, and testified: that, to the best of his knowledge, it contained a true, correct, and accurate accounting of the time spent and the expenses incurred in handling this job for the defendant; that he had access to the original books of account of American Appraisal Company; and that the original books of account showed an outstanding balance still due American Appraisal Company from the defendant of $993.62.
The testimony of this witness, with respect to the expense item and the office charge in the account, was objected to on the ground that it was based on what the books of the company showed, from his having seen the books of the company, and not upon his own knowledge as to the correctness of said items of the account.
Certain documentary evidence was introduced by the plaintiff, specified as exhibits 1 through 7. Exhibit 1 was a letter from H. R. Moore, manager of the Atlanta office of the appraisal company, to H. G. Miller of the Milwaukee office of said company, dated November 19, 1949, and was to the effect that W. W. Faw had authorized Moore that day to proceed to have an appraisal made of the Monson Hotel at St. Augustine, Florida; the letter stated that the appraisal company was to endeavor to have a representative at the Monson Hotel early the next week to proceed with the appraisal work.
Exhibit 2 was a letter from W. W. Faw to American Appraisal Company, dated January 2, 1950, acknowledging receipt of a bill for $600 on account for services in making the appraisal of the Monson Hotel, in which Mr. Faw stated that, before he made a payment on the bill for the appraisal work, he would like to know what the total bill for same would be; that he was under the impression that the total bill would not be a great deal more than $600; that he knew that he had been advised that the total charge would be based on $50 per day for each representative doing the appraisal work; but that he would like to know what the total bill would be before making a payment on it.
Exhibit 3 was a letter from American Appraisal Company to W. W. Faw, dated January 9, 1950, acknowledging receipt of Mr. Faw's letter of January 2, with reference to the bill that had been submitted for the appraisal work, stating that it was the custom of the appraisal company to submit a statement for its services during the progress of the work of making an appraisal, and advising Mr. Faw that, if it was his desire to defer payment until the delivery of the appraisal report, this would be satisfactory to the company, etc.
Exhibit 4 was a letter from the appraisal company to Mr. Faw, dated January 10, 1950, correcting some typographical errors in their letter of January 9, and also stating that they had omitted from that letter the item of expenses, which was an integral part of their charge.
Exhibit 5 was the leather-bound, loose-leaf appraisal report on the Monson Hotel, consisting of 192 pages.
Exhibit 6 was a letter from H. R. Moore of the Atlanta office of the appraisal company to H. G. Miller of the Milwaukee office of said company, dated February 10, 1950, in which it was stated that Mr. Faw did not mention that he would have to have the appraisal report for the last Tuesday in January, 1950, when he and Moore, on November 19, 1949, made the agreement as to making the appraisal report.
Exhibit 7 consisted of a copy of the account sued on.
Said exhibits 2, 3, 4, and 5 were admitted in evidence without objections, and exhibits 1, 6, and 7 were admitted over objections which will be referred to later on.
The defendant, W. W. Faw, testified: that he operated the Dixie Hunt Hotel in Gainesville, Georgia, and owned the Monson Hotel in St. Augustine, Florida, and was a stockholder in the John Sevier Hotel in Johnson City, Tennessee; that he contacted the Atlanta office of American Appraisal Company on November 19, 1949, and talked with H. R. Moore over the telephone with reference to having an appraisal made of the Monson Hotel; that he told Mr. Moore that he wanted the appraisal to present to the stockholders of the John Sevier Hotel at a meeting on the last Tuesday in January, 1950, with a view of selling the Monson Hotel to the John Sevier Hotel; that Mr. Moore told him that he would have the report made by that time; that, pursuant to their agreement over the telephone, he ordered the appraisal to be made; that, in a few days thereafter, he saw two men of the plaintiff company working at the Monson Hotel and thought they were rather casual in their work of making the appraisal and so expressed himself later; that the appraisal report was not furnished to him before the stockholders' meeting of the John Sevier Hotel on the last Tuesday in January, 1950, and he wrote to the plaintiff company on February 7, 1950, stating that he could not use the appraisal report on the Monson Hotel, as it had not been furnished to him in time to present to the stockholders' meeting of the John Sevier Hotel in January, 1950; that the report was later presented to him, sometime after February 25, 1950, and he refused to accept it, as it was not furnished to him within the time agreed upon and was useless and of no value to him when it was presented.
H. R. Moore, manager of the Atlanta office of the plaintiff company, again testified: that the defendant did not specify any date by which the appraisal report was to be delivered, and did not at any time tell him or specify when the meeting of the stockholders of the John Sevier Hotel was to be held, and he had no idea when the meeting would be held; that the defendant told him, when the contract for the appraisal was made and agreed upon, that he would like to have it as soon as he could get it, but no date or limit of time was specified or agreed upon.
1. The undisputed evidence shows that the defendant contracted with the plaintiff on November 19, 1949, to make an appraisal of the Monson Hotel in St. Augustine, Florida, and that he was to pay the company $50 per day for each man making the appraisal, plus expenses and office charges. The evidence of the two men who made the appraisal of the Monson Hotel shows that they worked there for at least 12 1/2 full days, and this evidence is not contradicted. Their evidence was sufficient to prove the first item of the account sued on, for $625. The only evidence tending to sustain the other two items of the account, "Expenses, $118.62," and "Office Charge, $250," was the testimony of H. F. wilson, one of the appraisers, which was to the effect that, to the best of his knowledge, the account sued on was correct; that he had access to the original books of account of the company, which showed an outstanding balance of $993.62 still due said company from the defendant. His testimony, with respect to the expenses of $118.62 and the office charge of $250, was objected to on the ground that it was hearsay, that he was not testifying from his own knowledge as to the correctness of these two items but, from having seen the books of the company, was testifying as to what the books showed. We think that the objection to this portion of his testimony was good and should have been sustained. See, in this connection, Crawford v. Stetson, 51 Ga. 120; Ninth Dist. A. M. School v. Wofford Power Co., 37 Ga. App. 271 (4) ( 139 S.E. 916); Case Threshing Machine Co. v. Binns, 23 Ga. App. 46 (1) ( 97 S.E. 443); Jenkins v. National Mutual B. L. Assn., 111 Ga. 732 (3) ( 36 S.E. 945).
Exhibit 7, above referred to, was only a copy of the account sued on, and could not be proved by merely introducing it in evidence. This disposes of the questions raised in special ground 1 of the motion.
2. Special ground 2 assigns error upon the admission in evidence of exhibit 1 above referred to, which was the letter from Moore to Miller, dated November 19, 1949, to the effect that Faw had engaged the appraisal company to make an appraisal of the Monson Hotel and to proceed with the work at once. This fact was not in dispute, having been testified to by both Moore and Faw, and the admission of this letter in evidence was harmless. This ground of the motion also assigns error upon the admission in evidence of the letter from Moore to Miller, dated February 10, 1950, and referred to as exhibit 6 above, in which it was stated that Faw did not mention to Miller that he had to have the appraisal report by the last Tuesday in January, 1950, when they made the agreement on November 19, 1949, as to making this report. The substance of this letter was testified to by Moore without objection, and furthermore its admission in evidence was not harmful because the jury would not have been authorized to disbelieve Faw's testimony to the effect that there was a time limit on the appraisal report merely because in his letter of January 2, 1950, he did not mention this.
3. The defendant's contention was that he did not owe any part of the account sued on because the appraisal report was not furnished to him within the time agreed upon, i.e., by or before the last Tuesday in January, 1950, when the meeting of the stockholders of the John Sevier Hotel was held; that he wanted the appraisal report to present to the stockholders' meeting at that time and so informed the plaintiff company when the appraisal was ordered; and that it was of no value to him when it was presented to him about the last of February, 1950. The testimony of the plaintiff's witnesses in this respect was to the effect that no time was specified within which the appraisal report was to be furnished to the defendant. The evidence is in direct conflict on this feature of the case, and the jury settled the conflict in favor of the plaintiff. The evidence authorized the verdict for $625, for the first item of the account sued on, but was not sufficient to authorize the verdict for the item of $118.62 as expenses and the office charge of $250. So the judgment is affirmed, on condition that the plaintiff write off from the judgment the amount of these two items; otherwise, the judgment is reversed. As the plaintiff in error has obtained a substantial modification of the judgment upon which error was assigned, the costs of this appeal are taxed against the defendant in error. American Airmotive Co. v. Meyer, 81 Ga. App. 554 ( 59 S.E.2d 514); Anderson v. Beasley, 169 Ga. 720 ( 151 S.E. 360); Equitable Life Assur. Soc. v. Gillam, 195 Ga. 797, 807 ( 25 S.E.2d 686).
Judgment affirmed on condition as stated. Felton and Quillian, JJ., concur.