Mabry v. Henley, 45762

• Decision Date: 05 March 1971
• Docket Number: No. 1,No. 45762,45762,1
• Citation: 123 Ga.App. 561,181 S.E.2d 884
• Court: Georgia Court of Appeals
• Parties: Blaine MABRY et al. v. Clyde W. HENLEY

Page 884

181 S.E.2d 884

123 Ga.App. 561

Blaine MABRY et al. v. Clyde W. HENLEY.

No. 45762.

Court of Appeals of Georgia, Division No. 1.

March 5, 1971.

Rehearing Denied April 2, 1971.

Syllabus by the Court

1. (a) The defendants failed to lay the proper foundation for the admission, as business records under Code Ann. § 38-711, of certain exhibits.

(b) Under the circumstances of this case it was not harmful error to refuse to permit the defendants to make an offer of proof as to excluded exhibits.

(c) Any error in the exclusion of testimony regarding the exhibits, or the exclusion of the exhibits themselves, was harmless error where other evidence of similar import was admitted.

2-7. The remaining enumerations of error are not meritorious.

Clyde W. Henley filed his suit in DeKalb Superior Court against Blaine Mabry and B & M Enterprises, Inc. The complaint contained allegations that: the plaintiff entered into a contract with defendants whereby they agreed to construct his residence in consideration of ten percent of the building costs, excluding the cost of the land, in accordance with plans and specifications which were made a part of the contract; the defendants undertook to perform the contract, but the house was not completed or ready for occupancy.

The complaint alleged that the defendants breached the contractual terms as follows: by the failure to perform the contract in a prompt and diligent manner, so as not to cause unnecessary hindrance or delay; by the failure to perform the work in a workmanlike and skillful manner. It was further alleged: that the plaintiff was to pay the cost of labor and materials, and the defendants to furnish the necessary tools for the performance of the contract; that in this respect, the defendants included in their charges, other than for labor and materials, costs of tools and other equipment; that the plaintiff had paid to the defendants the sum of $22,500, and that the defendants were demanding of the plaintiff the additional sum of $9,653.96, which included $2,923.48 as the contractor's building fee; that the defendants had only furnished to the plaintiff invoices for labor and materials in the sum of $16,725.84; that among these invoices were included nonchargeable items, duplications, and excessive items; and that the defendants refused to furnish the plaintiff a copy of the invoices or other proof of additional cost for labor and material, or in any way substantiate their claim of building cost, including labor and materials; that because of the defendants' breach of their contract and their failure to substantiate in any reasonable manner their claims of cost, the plaintiff is unable to close his permanent loan commitment, that this is costing him an unnecessary interest charge, and that he has no adequate remedy at law unless a court of equity intervenes and appoints an auditor to determine and fix the proper cost; that because of the defendants' breaches of the contract, they had forfeited their building fee. The complaint prayed for the appointment of an auditor, a restraining order to restrain the defendants from placing any lien upon said property, pending the further order of the court, for a finding that the defendants had forfeited their right to a building fee, for a rule nisi, and such other and further relief as might be necessary.

The defendants filed their answer admitting the execution of the contract, their undertaking to perform it, but denying any breach of the contract. By way of a counterclaim, the defendants set up modifications of the written contract and acts of the plaintiff which hindered and harmed the defendants in the performance of the contract and resulted in extra cost and extra work, labor and materials. The counterclaim sought the recovery of the additional sum of $11,282.33.

On the hearing of the rule nisi, the trial judge struck the equitable features from the complaint, directing that it proceed as an action at law, denied the prayers for the appointment of an auditor and dissolved the temporary injunction. Thereafter, the plaintiff amended the complaint to set forth additional breaches of the contract by the defendants through defective workmanship and set out the cost to the plaintiff to correct these defects.

The case came on for trial before a jury which returned a verdict for the defendants on the counterclaim in the amount of $4,000. Judgment was duly entered upon that verdict. The defendants filed a motion for new trial and later amended the motion by adding 30 special grounds. The motion for new trial as amended was overruled and appeal was taken to this court.

Martin McFarland, Atlanta, for appellants.

E. T. Hendon, Jr., Decatur, for appellee.

QUILLIAN, Judge.

1. Enumerations of error 3-24 are so related as to be considered together. They involved the exclusion of 15 exhibits consisting of checks, invoices and adding machine tape. Grounds 3, 4 and 20 complain of the trial judge's ruling excluding the 15 exhibits in toto. Grounds 5-19 complain of the exclusion of each individual exhibit. Ground 21 and part of Ground 22 assign error on the refusal to allow counsel for the defendants to make an offer of proof as to the exhibits. The remaining part of Ground 22 and Grounds 23 and 24 complain of the exclusion of the defendant Mabry's oral testimony with regard to information contained in the exhibits.

The issues herein involved arose out of the following circumstances. The defendants sought to introduce a series of exhibits which contained invoices from suppliers and subcontractors, checks in payment to the suppliers and adding machine tapes which the defendants used in connection with these transactions. Counsel for the plaintiff objected to 15 of these exhibits but did not set forth a ground for such objection. Nevertheless, the trial judge excluded them and stated for his reason that the amounts shown on the checks and the total of the invoices did not correspond.

After the trial judge indicated he would rule on the admissibility of the exhibits the defendants attempted to introduce additional evidence with regard to such exhibits but were refused in their offer to do so. After the exclusion of the exhibit, the defendants twice attempted to make further offer of proof as to what the exhibits would show but again the trial judge refused to allow this.

(a) 'It is the rule in this State that, whether the objections urged to the admission of evidence be valid or invalid, a judgment excluding it will be affirmed if it was inadmissible for any reason.' Edmonds v. State, 201 Ga. 108, 131, 39 S.E.2d 24, 39. See Harrison v. Regents of the Univ. System, 105 Ga.App. 817(lb), 125 S.E.2d 793; Heaton v. Hayes, 188 Ga. 632, 4 S.E.2d 570. Under authority of Martin v. Baldwin, 215 Ga. 293(4), 110 S.E.2d 344: 'A record or writing is not admissible under Code (Ann.) § 38-711 without the testimony of a witness whose evidence shows that the writing or record offered is a memorandum or record of an act, transaction, occurrence, or event made in the regular course of the business, and that it was the regular course of the business to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter.' See Walburn v. Taunton, 107 Ga.App. 411(2), 130 S.E.2d 279; Home Finance Co. v. Smith, 116 Ga.App. 76(1), 156 S.E.2d 522. As to the exhibits in question, the defendant failed to meet these requirements and the evidence was therefore inadmissible. Even though the trial judge's reason for excluding the evidence might be erroneous, we are compelled by the above authority to hold that such ruling must be affirmed.

(b) Enumerations of error 21 and 22 complain that the court erred in not permitting the appellants to make an offer of proof as to the excluded exhibits.

It is, of course, a well settled rule that in order to preserve a ground with regard to the exclusion of oral evidence, it is necessary that the complaining party show what he expects to prove and that such evidence was material, relevant and beneficial to him. Berger v. Plantation Pipeline Co., 121 Ga.App. 362(3), 173 S.E.2d 741; Griffin v. Henderson, 117 Ga. 382, 384, 43 S.E. 712. There is also a general rule that 'where an offer of proof is necessary, it is error for the trial court to refuse an opportunity to counsel to state what he proposes to prove by the evidence offered.' See 88 C.J.S. Trial § 73, p. 179, and cases cited. The Georgia courts have recognized the necessity of allowing an offer of proof. See Weathers Bros. Transfer Co., Inc. v. Jarrell, 72 Ga.App. 317, 345, 33 S.E.2d 805; Griffin v. Henderson, 117 Ga. 382, 384, 43 S.E. 712, supra; Holland v. Williams, 126 Ga. 617, 618, 55 S.E. 1023, 1024. The Supreme Court stated in the Holland case: 'Where a question propounded to a witness is objected to and rejected, counsel should be allowed to place on record what evidence it is expected the question will elicit, in order that his exception may be perfected.'

In Douglas v. American Cas. Co., 106 Ga.App. 744, 745, 128 S.E.2d 364, 366, this court, considering the exclusion of documentary evidence, held: 'Where the errors complained of relate to and require a consideration of evidence, it must be brought up in the bill of exceptions or attached to it as exhibits properly identified by the trial judge or embodied in an approved brief of evidence and brought up as a part of the record.' See also Athens Manufacturing Company v. Malcolm, 134 Ga. 600(2), 68 S.E. 329; Blount v. Faulk, 222 Ga. 589, 590, 151 S.E.2d 135.

We note that the exhibits are part of the record and there had been testimony concerning such exhibits as well as statements by counsel as to their import. Moreover, since they were inadmissible because the proper foundation for their admission had not been laid, the failure to allow counsel for the defendants to show what he expected to prove by the exhibits was not harmful error....