Opinion
32876.
DECIDED MAY 3, 1950.
Accounting; from Fulton Civil Court — Judge Etheridge. November 17, 1949.
J. Walter LeCraw, John H. Hudson, for plaintiffs in error.
J. H. Kennerly, contra.
1. Issues of fact are for resolution by the jury, and, where the evidence is conflicting, this court is without jurisdiction to set aside, on the general grounds, a verdict with some evidence to support it.
2. In considering an assignment of error on an excerpt from the charge of the court, the charge as a whole must be looked to. The assignment here, that the court failed to charge a substantial issue in the case, is, when the charge as a whole is considered, without merit.
3. The charge on interest was not sufficient to cover substantial issues raised by the pleading and the evidence and was error.
DECIDED MAY 3, 1950.
Gordon Nalley, plaintiff in the court below, defendant in error here, hereinafter called the plaintiff, on February 11, 1948, filed suit against C. M. Mendenhall and E. L. Adamson, hereinafter called the defendants, in the Civil Court of Fulton County alleging that the defendants were indebted to him in the principal sum of $702.50 together with interest thereon from March 1, 1945 at the rate of 7 percent. To his petition he attached a sworn, itemized statement for work done in 1945 in staking 467 lots in Lake Tara Subdivision in Clayton County at $2.50 a lot and one day's work on a swimming pool at $35, and showed a payment on account to him of $500 by sale of lots, leaving a balance due of $702.50.
The defendants answered, denying the particular contract alleged by the plaintiff, alleging a contract for the staking of the lots, the total price for which was to be $1000, but that the plaintiff had not completely performed this part of the contract "in that he did not put iron pins or stakes at the corners of the lots of said subdivision, with the exception of a few, approximately 40 lots." They further alleged that as part of the same contract, under which the total payment to the plaintiff was to be $1000, the plaintiff was to oversee the installation of an adequate spillway to take care of the surplus water at the dam of the lake on the subdivision, but that this part of the plaintiff's work was so negligently done, that surplus water had damaged the dam to the extent of $1600, the actual expense of repairing the dam. The defendants prayed for judgment for $500 "as the amount of cash which the defendants paid to plaintiff as a first payment on said contract," and for the additional amount of $1100 as the balance of the damage they had suffered as a result of the negligent performance of the plaintiff.
The plaintiff filed an answer to the answer and cross-petition of the defendants in which he denied the defendants' allegations, and alleged that he did survey a road below the dam, but did not "build the road" and that he "had no part in the erection of the dam."
The case was tried before a jury. The evidence on all points was in sharp conflict, as to the terms of the contract which was not reduced to writing, and as to the extent of the plaintiff's performance. The plaintiff testified that he had staked out 467 lots at the agreed price of $2.50 a lot, and that he had done other work in the subdivision for which he had been paid and was not "suing for that here." He testified that he had put iron pins at the corners of all the lots, that after "I finished the job I was not responsible for what went with the pins. Negroes may have gone there and pulled them up." He testified that he was paid $500 part payment in February 1944, and that some months later, in August, he asked Mendenhall for his money and he "said he didn't have it right then."
C. M. Mendenhall testified that he had the agreement with Nalley for the work at Lake Tara Subdivision, that Nalley was to "do this work, plat it out and furnish us with a map," for $1000, and that this agreement also included the laying out of roads. As to the pins, he stated, "I have personally examined a great many of these lots and haven't found any corner stakes. . . In my own attempts to locate the pins, I have never found as many as a dozen lots that had iron pins at the corners." As to payment, he testified, "I paid him $500. The reason I didn't pay him the other $500, was because he never completed the job. As to whether he has ever asked me for the $500 on the $700 that he is suing for, Mr. Nalley has never at any time asked me for any money that I have any recollection about, unless you consider the filing of this suit a demand for it."
As to the iron pins, E. L. Adamson testified, "I understand that he was to get $2.50 for surveying each lot and putting up iron pins. I have examined the iron pins. They are not all there," and that "I talked with Mr. Nalley before the ever left down there — before he ever completed the job. He said he would put them up as soon as he could get them; that pipe was scarce."
The evidence as to other contentions was similarly conflicting.
The jury returned the following verdict on September 28, 1949: "We, the jury, find for the plaintiff in sum of $702.50 and interest in the amount of $224.95."
The defendants filed a motion for new trial on the general grounds and amended by adding four special grounds. The amended motion was overruled and on this judgment the defendants assign error here.
1. The evidence was in sharp conflict on all material points, and, while there is sufficient evidence to have authorized a verdict for the defendants, the jury resolved the issues of fact in favor of the plaintiff, and this court is without jurisdiction to set aside, on the general grounds, a verdict supported by some evidence.
The testimony of the plaintiff, Nalley, the only witness in his behalf, was not so self-contradictory, vague or equivocal as to require the reversal of a verdict in his favor.
2. Special ground 4 assigns error because the court failed to charge "that the contract would not be a completely performed contract on the part of Nalley until he had finished putting down iron pins at the corners of the said lots," and that if the jury found that he had not fully performed he "would not be entitled to recover the balance of the payment under such contract until the completion of his services by putting down such iron pins on said lots."
Counsel for the defendants contend that failure so to charge deprived them of their "sole defense" on the main issue. In support of this ground they cite: Central Railroad v. Harris, 76 Ga. 501, Community Loan Investment Corp. v. Bowden, 64 Ga. App. 175 ( 12 S.E.2d 421), and Horne v. Neill, 70 Ga. App. 602 ( 29 S.E.2d 275). These cases were all reversed for failure to charge the law covering a substantial issue in the case.
In the instant case, in charging the contentions of the parties, the judge stated that the defendants claimed that "the plaintiff did not perform this part of his contract, in that he did not put down iron pins or stakes at the corners of the lots of said subdivision, with the exception of a few, approximately 49 lots."
In charging on the burden of proof, the judge charged that the burden was on the plaintiff to prove performance and that "if you find that the plaintiff has not proved to your satisfaction, by a legal preponderance of the evidence, as given you in charge, that he has performed his contract and is entitled to his money, then you would find a verdict for the defendants in the main suit."
In Central Railroad v. Harris, supra, the court said: "Where the judge gives in charge substantially the law covering the case, if more specific instructions on any point are desired they should be asked." In the absence of request for more specific instructions, and in view of those portions of the charge dealing with the contentions of the parties and the burden of proof set out above, and the charge as a whole, this ground shows no cause for reversal.
3. Special grounds 5, 6 and 7 will be considered together. Special ground 5 assigns error on the following charge: "If you find a verdict in favor of the plaintiff, I charge you that he would be entitled to interest on his money from such date as the money was due him until the present time at seven percent, which is the legal rate of interest in Georgia." It is contended that this charge cut off any deliberation by the jury as to whether the plaintiff would be entitled to interest under the facts of the case, treating it as a settled question, that, if the jury found for the plaintiff on the principal debt, they would automatically award interest, totally ignoring the question of whether there had been such a demand for payment or whether the nature of the debt was such, as a promissory note with a definite "due date," that interest should be thus automatically awarded. Special grounds 6 and 7 assign error on the failure to charge applicable Code sections, ground 6 on the failure to charge Code § 57-107, "In the absence of an agreement to the contrary, interest shall not run until default," and ground 7 on the failure to charge § 57-111, "All accounts of merchants, tradesmen, mechanics, and all others, which by custom become due at the end of the year, shall bear interest from that time upon the amount actually due whenever ascertained."
We agree with the contentions of counsel for the defendants in this respect, that the quoted excerpt from the charge, which is the only part of the charge relating to interest, was error. It is not necessary to decide whether the Code sections which are the basis of grounds 6 and 7 should have been charged verbatim, but the charge as given was too broad and did ignore substantial issues. The evidence was in conflict as to whether there had been any demand prior to commencement of the action, and the jury were not instructed as to what might have been the effect of such a demand, if they found that one had been made, nor how they were to determine the "due date" of the debt.
In this connection see Atlantic Coast-Line R. Co. v. Henderson Elevator Co., 18 Ga. App. 279 ( 88 S.E. 101), where a similar charge in a case involving an unliquidated demand was held to be error.
In support of his contention that the verdict should be allowed to stand as to the interest awarded, counsel for the plaintiff cites Berry v. Royal, 152 Ga. 425 ( 110 S.E. 167). In that case, the jury had found for the plaintiff, but did not award interest, and the case was remanded with instruction that interest be included in the judgment. The demand in that case, as is pointed out by counsel for the defendants, was liquidated, and nothing there held requires a ruling different from the one here made.
Except as indicated in the foregoing ruling as to the charge on interest, the court did not err in overruling the motion for a new trial, and the judgment is affirmed with direction that the plaintiff write off from the verdict and judgment the $224.95 included as interest, within ten days from the date the remittitur is received in the court below, otherwise the case will stand reversed.
Judgment affirmed with direction. MacIntyre, P. J., and Townsend, J., concur.