Kapplin v. Seiden

• Decision Date: 07 April 1964
• Docket Number: No. 1,40535,Nos. 40534,s. 40534,1
• Citation: 109 Ga.App. 586,137 S.E.2d 55
• Parties: Irving J. KAPPLIN v. Maxwell R. SEIDEN. Maxwell R. SEIDEN v. Irving J. KAPPLIN
• Court: Georgia Court of Appeals

Page 55

137 S.E.2d 55

109 Ga.App. 586

Irving J. KAPPLIN v. Maxwell R. SEIDEN.

Maxwell R. SEIDEN v. Irving J. KAPPLIN.

Nos. 40534, 40535.

Court of Appeals of Georgia, Division No. 1.

April 7, 1964.

Rehearing Denied April 21, 1964.

Syllabus by the Court

1. The petition of the plaintiff was not subject to any of the grounds of the defendant's general or special demurrers which were overruled by the trial court.

2. A ground of a motion for a new trial complaining of the exclusion of oral testimony offered by the movant, which alleges that such evidence was material and relevant to the issues in the case but which fails to point out pleadings authorizing the introduction of such evidence, is incomplete and will not be considered.

3. A ground of a motion for a new trial complaining of alleged prejudicial remarks by the trial judge in ruling on objections to evidence which does not allege that a motion for a mistrial was made and overruled at the time such remarks were made is insufficient to show harmful or revesible error.

4. The remaining special grounds of the motion for a new trial do not show cause for reversal for the various reasons pointed out in the corresponding division of the opinion.

5. The cross bill of exceptions is dismissed.

Maxwell R. Seiden sued Irving J. Kapplin to recover a balance of $760.10, allegedly due on a promissory note in the original amount of $6,760.10, executed by the defendant. In the same count he sought to recover the additional sum of $1,075.25, on account of certain extra work allegedly done on a house sold by the plaintiff to the defendant. The defendant filed an answer and a counterclaim against the plaintiff in which the defendant sought to recover the cost of work which he alleged had to be done in completing the house in accordance with the alleged sales agreement between the defendant and the plaintiff. The defendant also filed general and special demurrers to the plaintiff's petition, all grounds of which, except one ground of the special demurrers, were overruled, and the judgment overruling the demurrers is one of the assignments of error here. The defendant also filed a plea denominated as a plea of partial failure of consideration which raised substantially the same defenses raised by his answer and cross action. The jury returned a verdict for the plaintiff for the exact amount alleged to be due on the note, plus interest and attorney's fees, and in effect found against the plaintiff on that portion of his petition seeking to recover for the extra work on the defendant's house and against the defendant on his cross action. The defendant made a motion for new trial on the general grounds, which he amended by the addition of 12 special grounds. The order overruling that motion is the final judgment assigned as error. The plaintiff, in a bill of exceptions, assigns error on the judgment of the court denying plaintiff's claim for attorney's fees on the full original amount of the note sued on. Such other facts as are necessary to a clear understanding of the issues will be set forth in the opinion.

Fine & Rolader, D. W. Rolader, Atlanta, for plaintiff in error.

Hatcher & Irvin, Henry M. Hatcher, Jr., Atlanta, for defendant in error.

FRANKUM, Judge.

1. The first assignment of error contained in the bill of exceptions is on the overruling of the defendant's general and special demurrers to the petition. Manifestly the petition was not subject to general demurrer. It alleged that the defendant had executed a promissory note to the plaintiff in the principal amount of $6,760.10; that the defendant had paid $6000 thereon, and that $760.10 plus interest remained unpaid. A copy of the note attached to the petition showed that the defendant promised to pay the amount of the note upon selling property at 6728 Beacon Street, Pittsburgh, Pa. The plaintiff alleged that the defendant had sold the property at that location on September 26, 1961, and if it be contended that this condition precedent to the defendant's liability thereon rendered the obligation void for any reason, no demurrer raising this question was interposed by the defendant.

The defendant demurred specially to the petition on the ground that it contained a misjoinder of causes of action and was multifarious, and that the plaintiff was attempting to sue in one count for the balance due on a promissory note and for damages caused by misrepresentations, said causes being separate and distinct claims. In this court the plaintiff in error contends with respect to these grounds of demurrer merely that the plaintiff has attempted to join in one count an action ex contractu with an action ex delicto. The petition was not subject to this particular criticism since, if it be construed as joining in one count two separate causes of action, clearly both were actions ex contractu. It requires no citation of authority, of course, to support the statement that an action on a promissory note is an action ex contractu. Properly construed the remaining allegations of the petition set forth a cause of action in assumpsit. Code § 3-107. It is alleged merely that the defendant procured the plaintiff's agent to furnish certain materials and perform certain services in addition to those which the plaintiff and defendant had previously agreed upon, and the suit seeks to recover such excess. Where the owner of property procures a contractor engaged in improving the property to perform work in addition to that already agreed upon and for which a contract price has been fixed and determined, the law will imply a promise on the part of the owner to pay the reasonable cost of such additional work. Venable Constr. Co. v. United States, 5 Cir., 114 F. 763. Even as against the grounds of special demurrer interposed, the petition clearly alleges a cause of action based on this principle. Even though the conduct of the defendant giving rise to the cause of action as shown by the petition may be characterized as tortious, yet, if the essential allegations of the petition show that the action is one sounding in assumpsit to recover upon an implied promise to pay, the action will be construed as being one ex contractu rather than ex delicto, and the plaintiff will be deemed to have waived the tort. Hamby v. Collier, 136 Ga. 309(1), 71 S.E. 431. See also Council v. Statham, 187 Ga. 13, 199 S.E. 229; Zapf Realty Co. v. Brown, 26 Ga.App. 443(1), 106 S.E. 748; Scottish Union & National Ins. Co. v. Peoples Credit Clothing Co., 64 Ga.App. 147(2), 12 S.E.2d 474.

The remainder of the special demurrers were not meritorious, and the trial court did not err in overruling them.

2. In special ground 1 of the motion for new trial error is assigned because the court refused to permit a witness for the defendant to testify that the furnace installed in the defendant's house was not adequate for heating the entire house. It is contended in this ground that the court erred in excluding the testimony of the witness because the evidence which movant intended to be adduced by the witness was 'competent testimony dealing with a material issue in the case and the refusal of the court to allow this evidence was contrary to law, harmful and prejudicial to movant.' This is an insufficient assignment of error. While it is no longer essential that a ground of a motion for a new trial be complete and understandable within itself, each ground of a motion should, nevertheless, point out or make reference by page number or otherwise to such parts of the record or brief of the evidence where matter essential to a clear understanding of the assignments of error can be found by the court. Harris v. State, 96 Ga.App. 395, 400(2), 100 S.E.2d 120; Maxwell v. State, 97 Ga.App. 334, 336(1), 103 S.E.2d 162; Brown v. Carmanni, 100 Ga.App. 116, 122(5), 110 S.E.2d 543; Burton v. Brown, 101 Ga.App. 527(1), 114 S.E.2d 386. Accordingly, a ground of a motion for a new trial complaining of the exclusion of evidence offered by the movant, which alleges that such evidence was material and relevant to the issues in the case, must have incorporated therein the substance of or point out specifically the pleadings and their location by page number in the record which authorize the introduction of such evidence. The first special ground in this case is neither complete within itself nor does it point out any pleadings raising any issue with respect to any claim by the defendant that the furnace installed in his house was inadequate. It does not appear, therefore, from this ground, that the evidence offered by the defendant and excluded by the court was relevant and material to any issue in the case, and it was not error for the court to overrule this ground.

3. In special grounds 2 and 8 the defendant attempts to assign error on certain alleged prejudicial remarks made by the court in ruling on objections to evidence during the course of the trial. These grounds do not show that any motion for a mistrial was made at the time the remarks were made, and they are, therefore, insufficient to show harmful or reversible error. Pulliam v. State, 196 Ga. 782, 783(6-7), 28 S.E.2d 139; Simmons v. State, 79 Ga.App. 390, 409(5), 53 S.E.2d 772; Darby v. McNelley, 103 Ga.App. 570, 571(2), 120 S.E.2d 153.

4. Special grounds 3, 4 and 5 complain because the court excluded certain evidence offered by the defendant. These grounds are too incomplete to be considered because each ground fails to show some, if not all, of the following essentials of a valid ground of a motion for a new trial complaining of the exclusion of oral testimony: (a) that a pertinent question was...