Doster v. Brown

• Decision Date: 31 March 1858
• Citation: 25 Ga. 24
• Parties: Green B. Doster, plaintiff in error. vs. James Brown, defendant in error.
• Court: Georgia Supreme Court

25 Ga. 24

Green B. Doster, plaintiff in error. vs. James Brown, defendant in error.

Supreme Court of the State of Georgia

MARCH TERM, 1858.

Assumpist and New Trial, from Coweta county. Decided by Judge Bull, September Term, 1857.

This was an action by Green B. Doster against James Brown, to recover the amount which the plaintiff claimed for work-done in the erection of a mill for the defendant. The dam of the mill was washed away and the defendant refused to pay the plaintiff the amount claimed.

On the trial the plaintiff introduced a memorandum book to prove the account. To the admission of this in evidence the counsel for the defendant objected on the ground that it was without date and that there were alterations and erasures in the amounts charged, and the Court ruled it out.

The facts of this case are sufficiently stated in the opinion of the Court.

Powell, for plaintiff in error.

Sims and Erskine, contra.

By the Court.—McDonald, J., delivering the opinion.

The first assignment of error in this record is on the decision of the Court rejecting, as evidence, the memorandum book of the plaintiff, tendered as his book of original entries, to prove the account sued on. It was ruled out on twogrounds, 1st. Because it was without date; and second, because it showed, upon inspection, manifest alterations and erasures in the amounts charged. The date of the account may have been proved by other evidence, and that the book had no date, was not a valid objection to its being admitted in evidence. The date of the account must have been proven, however, in some way. The other reason for excluding the books is a sound one. This kind of evidence is of the lowest grade, being the mere declarations of the party himself, in writing, that another is his debtor. There can be no reliance on such a book, where the amounts have been altered, and there are erasures, and there is no explanation, and the party had no clerk and made the entries and alterations himself. They ought to have been rejected.

The only objection made to the admissibility of the evidence of Samuel D. Echols, was that he was not an expert. There was no question asked him as to the particular work done. He testified that the plaintiff was no millwright, and that his opinion was founded on work done by him for both the witness and the defendant. He had owned mills twenty-five or thirty years, and had work done on them. In the case of Malton vs. Nesbit and another, 1 Car. & P. 70, which was an action for negligently steering a ship, whereby she was wrecked, nautical men were called and allowed to give their opinion, whether upon the facts in proof there was negligence. They were not steersmen. I see no reason why a mill owner of twenty-five or thirty years' experience may not give his opinion in a case like this. An expert is nothing more than a man of experience in the particular business to which the enquiry relates.

The Court below committed no error in arresting the argument of plaintiff's counsel, that he was entitled to recover the amount contracted to be paid to him, although the work was not done, if he was prevented by the act of God from finishing it. There is no such principle. He might, in such case, be entitled, on a quantum meruit count, to recoverfor what materials had been furnished and the work which he had done, if it was. worth anything. But in this case there was no evidence to support the argument. The mill and the dam had been washed away. There was no extraordinary flood, and one of the witnesses testified that the rain was not very heavy. The mill was not braced, nor was the dam or mill house weighted down. There was nothing to prevent its floating off. If the evidence be true, instead of what is termed in law, the act of God, preventing the work, the destruction of the mill and dam was the result of the great unskillfulness or the gross negligence of the plaintiff in executing the work which he had undertaken. While every shower of rain that falls upon the earth is the act of God, in contradistinction to the act of man, yet an ordinary freshet is not the act of God, in the legal sense which protects a man against responsibility for the non-performance of a contract like that made by this plaintiff. If by skill and labor, the work can be done by man so as to resist the ordinary, or what may be called extraordinary floods, which often occur, but at long intervals, and the work is carried away, it can not be attributed to the act of God; but if what is called a waterspout, descends with such overwhelming power and force as to bear off everything before it, and is irresistible, and the strongest work of...