West Lumber Co. v. Schnuck Et Al., 85 Ga. App. 385, 69 S.E.2d 577 (1952)

Georgia Court Of Appeals

Status: DECIDED

Docket Number: 33728

Parts: Complaint; from Fulton Civil Court-- Judge Park...

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Summary

Judgment affirmed. Sutton, C. J., concurs. Felton, J., concurs specially.

Summary

Judgment affirmed. Sutton, C. J., concurs. Felton, J., concurs specially.

Text

Augustine Sams, Grigsby H. Wotton, for defendants.Herbert Johnson, Henry M. Hatcher Jr., R. R. Rhudy, for plaintiff.

1. Since no abuse was shown, the broad discretion of the trial judge in overruling a motion for mistrial based on alleged improper remarks of counsel will not be controlled.

2. Objections to the admission of evidence, that it was incompetent, immaterial, and prejudicial, are too vague and indefinite to present anything for consideration.

4. It is not error to admit evidence over the general objection that the question called for a conclusion.

5. A ground complaining of the admission of evidence, which sets forth the question but fails to disclose the answer, is incomplete and will not be considered.

6. A ground which contends that a charge was erroneous, injurious, confusing and misleading is too general and indefinite to raise any question for consideration by this court.

7. The ground complaining that the court erred in charging the jury as to its duty to mitigate damages was not error under the facts of the case for any reason assigned.

8. Grounds which assign error on the refusal of the court to give certain instructions requested in writing, but which nowhere allege that the requests were pertinent and applicable to the facts of the case are defective.

9. Objections that a charge was an unsound and incorrect statement of law and gave an incorrect measure of damages are too vague and general to offer anything for consideration.

(a) An assignment of error on the failure of the court to charge mitigation of damages at a particular place in the charge is without merit where such instruction was included elsewhere in the charge.

10. The allowance of an amendment to a petition can not be the basis of a ground in a motion for a new trial, but where exceptions pendente lite are filed and an assignment of error there on included in the main bill the point is properly preserved.

11. The ruling on a motion to strike the cross-bill is not properly the subject-matter of a ground in a motion for a new trial.

(a) It is never error for the court to refuse to direct a verdict.

12. The verdict was authorized by the evidence.

West Lumber Company sued Lloyd B. Schnuck and T. J. O'Neil in the Civil Court of Fulton County on account for building materials furnished. The amended petition alleged that the defendants were indebted to the plaintiff in the amount of $8,793.54 plus interest. The defendants filed an answer and cross-action, denying indebtedness, pleading payment and estoppel, and seeking $19,562.05 as damages for breach of contract. The case proceeded to trial before a jury, and resulted in a verdict for the defendants. The judgment overruling the plaintiff's motion for a new trial was reversed in West Lumber Company v. Schnuck, 82 Ga. App. 799 (62 S. E. 2d, 370). On the second trial of the case the pleas of payment and estoppel were withdrawn and the validity of the plaintiff's amended claim was admitted. The cross-action alleged, in substance, that Chester M. Schnuck owned a lot on which the defendants were to build a house to be sold, that the plaintiff agreed to furnish the materials on credit during the period of construction and until the house was sold, and that, unknown to the defendants, the plaintiff procured the transfer to it of a security deed on the property, exposed the property to public sale under power contained therein, and purchased the same, thereby making it impossible for the defendants to arrange a sale as contemplated by the parties and thereby pay for the materials. At the second trial the defendants offered an amendment seeking to recover the fair market value of the property, alleged to be $32,500, less the $22,200 indebtedness against the property, alleged to include $3100 to Chester Schnuck, owner of the lot, $10,300 to Atlanta Federal Savings & Loan Association on the secured loan, and approximately $8800 due the plaintiff on its bill for material. The amendment was allowed over demurrers and objection and the plaintiff filed exceptions pendente liter. The case proceeded to trial and the jury returned a verdict for the defendants for $4000. The plaintiff's amended motion for a new trial was overruled, and the case is here on exceptions to this judgment and the exceptions pendente lite.

(After stating the foregoing facts.) 1. Ground 1 of the amended motion for a new trial contends that the court erred in allowing counsel for the defendants to state, in his opening argument, that the plaintiff had not attempted to foreclose its lien in the way provided by law. Counsel for the plaintiff objected to the statement on the ground that it was improper and prejudicial, and made a motion for a mistrial. It is now contended that the statement was prejudicial because it allowed the jury to consider that the plaintiff's failure to foreclose its lien according to statutory procedure was in itself a breach of some duty. "The trial court has a broad discretion in considering a motion for mistrial based on alleged improper arguments of counsel, and its discretion will not be disturbed unless manifestly abused," McCoy v. Scarborough, 83 Ga. App. 163, 166 (63 S. E. 2d, 264).

7. Ground 11 assigns error on the charge of the court relating to mitigation of damages on the ground that it was erroneous in that it placed a duty upon movant to notify the defendants of their intention to purchase and foreclose a certain loan deed on the property involved when there was no such duty and that the duty to mitigate damages arose only in the event of such notice. The charge stated a correct principle of law as applied to the facts of the case and was not error for any of the reasons assigned.

9. Ground 14 assigns error on the court's lengthy charge on damages on the ground "that such charge was erroneous and injurious to it in that it was an unsound and incorrect measure of damages, it authorized a verdict on behalf of the defendants for their claimed equity in the property without regard to damages which could have been mitigated, and it was confusing and misleading to the jury." The contentions that the charge was an unsound and incorrect statement of law, and gave an incorrect measure of damages, offer no specific objections and are too vague and general to present anything for consideration by this court. Wade v. Eason, supra; Waters v. State, supra. The argument that the charge authorized a verdict for the defendants without regard to damages which could have been mitigated is without merit, since the record shows that the court had previously given an instruction on mitigation of damages. "When error is assigned upon the failure of the court to charge a required principle of law at a particular place in the charge, or in connection with a specified part thereof, the whole charge must be looked to in order to determine whether or not the alleged omitted part is error; and construing the charge as a whole, if the required part alleged to be omitted at a particular place is elsewhere contained in it, the charge is without error on this ground." Harper v. Hall, 82 Ga. App. 533 (1) (61 S. E. 2d, 570) Williams v. American Surety Co., 83 Ga. App. 66 (3) (62 S. E. 2d, 673).

12. The general grounds are without merit. After a verdict, the evidence is construed most favorably to the prevailing party, for every presumption and inference is in favor of the verdict. ( Bowie Martin Inc. v. Dews, 73 Ga. App. 73 (2) (35 S. E. 2d, 577), and where the verdict is supported by any evidence, and approved by the trial judge, this court is without authority to disturb it. Ward v. Gardner, supra. The measure of damages in the present case, for breach of contract, is the difference between the fair market value of the property at the time of the foreclosure and its entire cost. Upmago Lumber Co. v. Monroe & Co., 148 Ga. 847, 848 (3) (98 S. E. 498). The verdict of $4000 was authorized by the evidence and approved by the trial judge, and there were no errors of law, and hence this court has no power to disturb it.

FELTON, J., concurring specially. I concur in the judgment and in all of the rulings except those in division 10 of the opinion. As to the exception therein ruled on I am of the opinion that the allowance of the amendment was not harmful to the plaintiff for the reason that the court gave the correct charge on the measure of damages.

1952