Johns v. League, Duvall & Powell

• Decision Date: 24 October 1947
• Docket Number: 15937.
• Court: Georgia Supreme Court
• Parties: JOHNS v. LEAGUE, DUVALL & POWELL, Inc.

45 S.E.2d 211

202 Ga. 868

JOHNS v. LEAGUE, DUVALL & POWELL, Inc.

No. 15937.

Supreme Court of Georgia

October 24, 1947

Syllabus by the Court.

1. A defendant against whom a verdict has been returned can not complain that the verdict is for a less amount than that which the plaintiff was entitled to recover if entitled to recover at all.

2. Assignments of error upon the admission of evidence, in order to avail the plaintiff in error here, must show, not only in what respects the evidence admitted was objectionable, but that this objection was urged at the time of the admission of the evidence; and it is not sufficient in a ground of a motion for a new trial to state that the court committed error in admitting in evidence, over the objection of the movant, certain specified evidence, and then, after stating the evidence admitted, to allege that it was error to admit this evidence because it was incompetent for certain specified reasons. Such a recital in a ground of a motion for a new trial does not show that the ground upon which the evidence was objectionable was urged at the time the evidence was offered. Accordingly, there was no merit in ground 9.

(a) None of the grounds of the motion for a new trial showed cause for a reversal.

This case was transferred by the Court of Appeals, as the Judges were equally divided as to the judgment that should be rendered. SUTTON, C. J., MacINTYRE, P. J., and GARDNER, J. being for affirmance; and FELTON, PARKER and TOWNSEND, JJ being for reversal.

League Duvall & Powell Inc., sued J. D. Johns for $1750 as commissions on a sale of real estate. The jury returned a verdict for one-half of that amount, to wit, $875. Johns excepted to the overruling of his motion for a new trial. He takes the position that the verdict is unauthorized, in that it should have been either for the entire amount sued for on else for him, the defendant in the lower court.

The contract is alleged to have been oral, and the pertinent portions of the petition were as follows: 5. 'The defendant is indebted to your petitioner in the principal sum of $1750 * * * because of the facts and circumstances hereinafter set forth.' 9. 'The defendant advised your petitioner that he would sell the said property at $35,000 * * * gross and that he would pay the petitioner a commission of five * * * per cent. of said total purchase price, should the petitioner find a purchaser, ready willing, and able to buy at that price.' 13. The defendant conveyed the property to the wife of C. C. Reynolds. 14. 'The said C. C. Reynolds and through him his wife were originally interested in the said property by your petitioner and its agent, William J. Kelly, and it was through the services and labors of your petitioner, through the said Reynolds, that the latter's wife was procured as a purchaser of the said property.' 15. 'Your petitioner having procured the said Reynolds as a purchaser ready, willing, and able to purchase the said property at the price and under the terms required by the defendant, your petitioner became entitled to commissions as such real-estate broker.' 16. 'The percentage of commissions under the terms by which your petitioner was engaged as broker by the defendant was five * * * percent. of the purchase-price.' 17. 'The purchase price at which your petitioner was authorized to offer the said property for sale was * * * $35,000, and there is therefore owed by the defendant commissions in the amount of * * * $1450 to petitioner.'

The evidence to support the petition showed the contract to be as alleged, and that it had been fully carried out by producing a purchaser ready, willing, and able to buy at the price of $35,000, but that Johns refused to pay the 5 percent. commissions. There was no evidence showing merely a part performance, or performance in any manner different from that described in the contract.

Johns, as defendant in the lower court, denied that he had made any contract or agreement with the plaintiff for the sale of the property or the payment of a commission, and denied that the plaintiff had procured a purchaser under terms as alleged and testified to by the plaintiff.

In his motion for new trial, it was contended by the defendant that the suit was based entirely upon an express contract for a stipulated percentage of a definite sale price, and that it contained no allegations that would authorize a recovery for a less amount upon the basis of a quantum meruit. It was also contended that the verdict was contrary to the following charge of the court: 'Gentlemen of the jury, it will be 5 percent commission if he is entitled to recovery.'

The foregoing is a sufficient statement of the grounds of the motion for a new trial except ground 9, which was as follows: '(9) Because the court permitted C. C. Reynolds, a witness called on behalf of the plaintiff, to testify over objections of the defendant from a written memorandum which the witness had not himself made, the same being an unsigned printed form. The particular evidence objected to being as follows: 'You paid a thousand dollars in earnest money which is to be deposited with the Southern Finance Corporation, Agent, in escrow, by seller until closing of sale. It is further agreed that sales commission as provided by Augusta Real Estate Board is to be paid by seller, and the within contract constitutes the entire agreement between the parties here, and no oral agreement shall be binding on either party.' Said evidence being inadmissible for the reason that it was hearsay, and that it was in effect permitting the terms of an inadmissible paper to be given to the jury when the paper itself was later ruled out by the court, and permitted the witness to read from such unsigned paper facts which he could not testify to of his own knowledge.'

It also appears in the record that the judge, in addition to other instructions, charged the jury as follows: 'If you find that the plaintiff has made out his case * * * then your verdict would be for the plaintiff in such an amount as you believe he is entitled to from the evidence.' There was no exception to this portion of the charge.

Wm. P. Congdon, of Augusta, for plaintiff in error.

Cumming, Nixon & Eve, of Augusta, for defendant in error.

BELL Justice.

1. The defendant (now plaintiff in error) contends that the plaintiff was confined by its allegations to recovery upon an express contract, that the evidence did not disclose any middle or intermediate ground as to the amount sued for, and that, under the pleadings, evidence, and charge of the court, if the jury believed the evidence for the plaintiff, they should have found in his favor for the full amount sued for, while if they believed the evidence for the defendant, they should have returned a verdict entirely in his favor. Assuming that this is a correct view of the case as presented by the record, we cannot agree that the judgment should be reversed for the reasons thus urged.

In Roberts v. Rigden, 81 Ga. 440(2), 443, 444, 7 S.E. 742, it was said: 'The verdict was for less than it might have been, and the motion for a new trial suggests that it should have been more or nothing. That it was for something shows that the jury believed the facts were so far with the plaintiff as to entitle him to maintain his action. The defendant certainly has no right to a new trial because the verdict was too small.' That case cannot reasonably be distinguished from the instant case, in view of the facts upon which the court actually put its decision. See the statement of facts in the opinion. Also the portion of the decision here quoted shows the defendant contended that the verdict should have been for more or nothing, and it was upon this contention that the court made the ruling that the defendant had no right to complain. Similar statements have been made in other decisions of this court, and also in decisions of the Court of Appeals. Perhaps some of the decisions to this effect may be distinguished by their facts, in that the amount in controversy in each of them was unliquidated, so to speak, and the sum awarded by the verdict was therefore within the range of the evidence considered as a whole. However, it is unnecessary to refer to specific cases of the latter class, as we think that there are several earlier decisions of this court which cannot be distinguished on principle from the instant case and which are controlling. According to our view, the following, in addition to Roberts v. Rigden, supra, cannot be to distinguished: Ellis v. United States Fertilizing & Chemical Co., 64 Ga. 571(1); Central of Georgia Ry. Co. v. Trammell, 114 Ga. 312(3), 315, 40 S.E. 259; Strickland v. Hutchinson, 123 Ga. 396(3), 51 S.E. 348 cross action; Pullman Co. v. Shaffner, 126 Ga. 609(4), 55 S.E. 933, 9 L.R.A.,N.S., 407; Dolvin v. American Harrow Co., 131 Ga. 300(11), 62 S.E. 198.

In Central of Georgia Ry. Co. v. Trammell, supra, it was said [114 Ga. 312, 40 S.E. 261]: 'Complaint is further made in the motion for a new trial that the verdict is contrary to the evidence, because, if the plaintiffs were entitled to recover at all, the evidence demanded a finding for a larger sum than that for which the verdict was rendered. We know of no principle upon which a defendant can complain that a verdict for a less amount than that demanded by the evidence was returned against him.' While that was a suit for unliquidated damages, the decision shows plainly that this fact did not enter in any way whatever into the ruling of the court as above quoted. In the Dolvin case, the rule was stated as follows: 'A defendant, against whom a verdict has been returned, cannot complain that the verdict is for a less amount than that which the plaintiff was entitled to recover, if...